Piggyback Registration Rights. If, at any time during the three-year period commencing on the date hereof, the Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.
Appears in 4 contracts
Samples: Warrant Agreement (AskMeNow,Inc.), Warrant Agreement (AskMeNow,Inc.), Warrant Agreement (AskMeNow,Inc.)
Piggyback Registration Rights. If, If at any time during the three-year period commencing on the date hereof, the Company proposes or is required to file a registration statement registering register any shares of its Common Stock or any other equity securities (or other securities convertible into equity securities) of the Company under the Securities Act for sale to the public for cash, whether for its own account or exchangeable for Common Stock the account of other security holders or both (other than a Demand Registration or a registration on Form S-4 or Form S-8, S-8 promulgated under the Securities Act (or such any successor forms thereto) or any other forms as form not available for registering the U.S. Securities and Exchange Commission may hereafter promulgate Registrable Stock for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of sale to the date hereofpublic), whether or not for its own accountas soon as practicable prior to the filing of such registration statement with the Commission, the Company shall it will give at least 20 days prior written notice to the Holder of its intention to do soeffect such registration (each such notice a “Piggyback Notice”) to (i) if such proposed registration is being made in connection with the Company’s initial Public Offering, each of WCAS, the Xxxxxxx Investors and, unless WCAS elects to waive its rights under this Section 2(d) as provided below with respect to such registration within ten days of receiving its Piggyback Notice, the other Investors or (ii) if such proposed registration is to occur after the IPO Date, to each Investor. Upon the written request by the Holder of any Investor, given within 10 20 days after the giving of the Piggyback Notice to such Investor entitled to receipt thereof, to register any of such noticeits Registrable Stock (which request shall state the number of shares of Registrable Stock to be so registered and the intended method of disposition thereof), the Company shall will use its commercially reasonable efforts to include cause the Registrable Stock, as to which registration shall have been so requested, to be included in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected covered by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, all to the underwriter(s) extent required to permit the sale or any other authorized parties and the execution and delivery disposition by such Investor of such agreements (including indemnification and contribution agreements)Registrable Stock so registered; provided, instruments and documents as may be reasonably requested therebythat nothing herein shall prevent the Company from abandoning or delaying such registration at any time. Notwithstanding anything to the contrary contained herein, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with any registration statement to be filed prior to the registration contemplated herebyIPO Date, including without limitation if WCAS elects to waive its rights under this Section 2(d) with respect to such registration and filing feesthe related initial Public Offering, printing expenses, such waiver shall be effective as a waiver of the rights of all Investors other than the Xxxxxxx Investors under this Section 2(d) with respect to such registration and fees and expenses of counsel for offering. In the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in event that any registration hereunder, and all fees and expenses for counsel referred to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable2(d) shall be, in whole or in part, without an underwritten public offering, such Registrable Stock shall be included in the prior written consent underwriting on the same terms and conditions as the shares otherwise being sold through underwriters under such registration. The number of shares of Registrable Stock to be included in such an underwritten offering may be reduced if and to the extent that, in the good faith opinion of the Company. Notwithstanding anything managing underwriter of such offering, inclusion of all shares would adversely affect the marketing (including the offering price) of the shares to be sold, and, in the case of any such reduction, shares shall be included in such offering to the contrary set forth herein, extent so permissible on the Holder hereby expressly agrees and acknowledges that any registration rights of following basis: (x) in the Holder hereunder are subordinate to those of the holders case of the Company’s 10% initial Public Offering (PIK1) Series A Preferred first, all shares proposed to be included by the Company for the account of the Company shall be included, (2) second, all Registrable Stock proposed to be included by the Xxxxxxx Investors shall be included (subject to pro rata reduction among the Xxxxxxx Investors seeking to include Registrable Stock in such offering based on the number of such shares of Registrable Stock held by the Xxxxxxx Investors) up to an amount of Registrable Stock that can be sold in such Public Offering for an aggregate $105,000,000, (3) third, all Registrable Stock proposed to be included by the WCAS Investors shall be included (subject to pro rata reduction among the WCAS Investors seeking to include Registrable Stock in such offering based on the number of such shares of Registrable Stock held by the WCAS Investors) up to an amount of Registrable Stock that can be sold in such Public Offering for an aggregate of $105,000,000 (subject to adjustment to give effect to any shares of Registrable Stock distributed by WCAS and WCAS XX XX to their respective partners prior to such Public Offering), (4) fourth, all Registrable Stock proposed to be included by the Investors that have not been otherwise included shall be included (subject to pro rata reduction among the Investors seeking to include Registrable Stock in such offering based on the number of such shares of Registrable Stock held by such Investors) and (5) finally, Common Stock proposed to be included by the Company for the account of other stockholders of the Company shall be included, and (y) in the case of any subsequent Public Offering (1) first, all shares proposed to be included by the Company for the account of the Company shall be included, (2) second, all Registrable Stock proposed to be included by the WCAS Investors shall be included (subject to pro rata reduction among the WCAS Investors seeking to include Registrable Stock in such offering based on the number of such shares of Registrable Stock held by the WCAS Investors) up to an amount of Registrable Stock that can be sold in such Public Offering for an amount equal to the proceeds received by the Xxxxxxx Investors in the Company’s 10% initial Public Offering less the aggregate amount of proceeds received by the WCAS Investors in respect of Registrable Stock included in previous Public Offerings (PIKsubject to adjustment to give effect to any shares Registrable Stock distributed by WCAS and WCAS XX XX to their respective partners prior to such Public Offering, but after the previous Public Offering), (3) Series B Preferred third, all Registrable Stock proposed to be included by the Investors that have not been otherwise included shall be included (together, subject to pro rata reduction among the “Preferred Stock”Investors seeking to include Registrable Stock in such offering based on the number of such shares of Registrable Stock held by such Investors) and warrants issued (4) finally, Common Stock proposed to such holders in connection with be included by the purchase and sale Company for the account of other stockholders of the Preferred Company shall be included. Each Investor agrees to keep any information it receives from the Company pursuant to Section 2(a), including any Demand Registration Notice, and this Section 2(d), including any Piggyback Notice, confidential until it is publicly disclosed or such proposed registration is abandoned. Each Investor acknowledges that trading on material non-public information is a violation of the U.S. securities laws, and each Investor agrees not to do so in respect of its Registrable Stock.
Appears in 4 contracts
Samples: Registration Rights Agreement (AGA Medical Holdings, Inc.), Registration Rights Agreement (AGA Medical Holdings, Inc.), Registration Rights Agreement (AGA Medical Holdings, Inc.)
Piggyback Registration Rights. If, If at any time during the three-year period commencing on after the date hereof, the Company proposes or is required shall determine to prepare and file with the Commission a registration statement registering (“Registration Statement”) relating to an offering for its own account or the account of others of any shares of Common Stock or its equity securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8S-8 or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans), or then the Company shall send a written notice of such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of determination to Optionee and, if within ten calendar days after the date hereof)of delivery of such notice, whether or not for its own accountOption shall so request in writing, the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that or any part of the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by shares of the Company’s common stock underlying the Option (“Underlying Shares”) as the Optionee requests to be registered so long as such Underlying Shares are proposed to be disposed in the same manner as those securities set forth in the registration statement; provided, and (ii) sell the Holder’s securitieshowever, if the offering is an underwritten offering and was initiated by the Company so requestsor at the request of a shareholder, on and if the same basis and upon managing underwriters advise the same terms as Company that the other securities covered by such registration statement, other than securities proposed inclusion of Underlying Shares requested to be registered by included in the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with Registration Statement would cause an adverse effect on the success of any such underwritten offering, based on market conditions or otherwise (an “Adverse Effect”), then the Company shall only be required to include in such offering Registration Statement, to the extent of the amount of securities that number the managing underwriters advise may be sold without causing such Adverse Effect, (a) first, the securities of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, Company and (b) if second, the number shares, including the Underlying Shares, of all shareholders, on a pro rata basis, requesting registration and whose shares the Company is able obligated by contract to register is limited due include in the Registration Statement; provided, further, however, to Rule 415 or other SEC shelf registration rulesthe extent that all of the Underlying Shares are not included in the initial Registration Statement, the Company Optionee shall only be required have the right to register request the Warrant inclusion of its Underlying Shares the Holder elects to include on a pari passu basis in subsequent Registration Statements until all such Shares have been registered in accordance with the other shares being registered, other than any shares proposed to be terms hereof and all such Underlying Shares have been registered by in accordance with the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone terms thereof. If the offering of securities contemplated by such registration statement without any obligation to in which the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registrationUnderlying Shares is being included in a Registration Statement is a firm commitment underwritten offering, including but not limited to the provision of such information as may reasonably be requested unless otherwise agreed by the Company, the underwriter(s) or any Optionee shall sell its Underlying Shares in such offering using the same underwriters and, subject to the provisions hereof, on the same terms and conditions as the other authorized parties and the execution and delivery shares of Common Stock that are included in such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable lawsunderwritten offering. The Company shall pay use its best efforts to cause any Registration Statement to be declared effective by the Commission as promptly as is possible following it being filed with the Commission and to remain effective until all Underlying Shares subject thereto have been sold. All fees and expenses incident to the performance of or compliance with this Section 7 by the Company shall be borne by the Company whether or not any Underlying Shares are sold pursuant to the Registration Statement. The Company shall indemnify and hold harmless the Optionee to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses incurred (collectively, the “Losses”), as incurred, arising out of or relating to (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included therein or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (ii) any violation or alleged violation by the Company of the Securities Act of 1933, as amended (“Securities Act”), the Securities Exchange Act of 1934 or any state securities law, or any rule or regulation thereunder, in connection with the registration contemplated herebyperformance of its obligations under this Section 7, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating except to the Holderextent, but only to the extent, that such untrue statements or omissions referred to in (i) above are based solely upon information regarding the Optionee furnished in writing to the Company by the Optionee expressly for use therein, or to the extent that such information relates to the Optionee or the Optionee’s registered securities included proposed method of distribution of Underlying Shares and was reviewed and expressly approved in writing by the Optionee expressly for use in the Registration Statement, such prospectus or such form of prospectus or in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holderamendment or supplement thereto. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate Optionee under this Section 7 shall survive for so long as this Option is exercisable until all Underlying Shares have been either registered under a Registration Statement or been sold pursuant to those an exemption to the registration requirements of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockSecurities Act.
Appears in 4 contracts
Samples: Stock Option Agreement (Solomon Technologies Inc), Stock Option Agreement (Solomon Technologies Inc), Stock Option Agreement (Solomon Technologies Inc)
Piggyback Registration Rights. If, If the Company at any time during from the three-year period commencing ate of the issuance of this Option through the Expiration Date, proposes to register any of its securities under the ecurities Act for sale to the public, whether for its own account or for the account of other security holders or both (except with respect to registration statements on Forms S-4, S-8 and any successor fxxxx xxxxeto), each such time it will give written notice to such effect to the date hereofOptionee at least 30 days prior to such filing. Upon the written request of the Optionee received by the Company within 20 days after the giving of any such notice by the Company to register any of shares of Common Stock, the Company proposes or is required to file a registration statement registering any will cause the shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for to which registration of securities in transactions for which Form S-4 or Form S-8 may shall have been so requested to be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include included in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected covered by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, all to the underwriter(s) extent required to permit the sale or any other authorized parties and disposition by the execution and delivery Optionee of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses shares of counsel for the CompanyCommon Stock so registered. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to in the Holder’s registered securities included in event that any registration hereunder, and all fees and expenses for counsel pursuant to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable7 shall be, in whole or in part, without an underwritten public offering of Common Stock, the prior written consent number of shares of Common Stock to be included in such an underwriting may be reduced (pro rata among the requesting Optionees) and the other selling stockholders (based upon the number of shares of Common Stock requested to be registered by them) if and to the extent that the managing underwriter shall be of the Companygood faith opinion that such inclusion would adversely affect the success of such an underwriting, provided, that such number of shares of Common Stock shall not be reduced if any shares of Common Stock are to be included in such underwriting for the account of any person other than the Company or requesting Optionees of shares of Common Stock. In the event of such a reduction, the Company agrees to file a registration statement for the resale of the shares underlying this Option not included in such underwritten offering within ninety (90) days of the date that the underwritten offering is declared effective by the Securities and Exchange Commission. Notwithstanding anything the foregoing provisions, the Company may withdraw any registration statement referred to in this Section 7 without thereby incurring any liability to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights Optionees of the Holder hereunder are subordinate to those shares of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Common Stock.
Appears in 4 contracts
Samples: Stock Option Agreement (Friday Night Entertainment Corp), Stock Option Agreement (Friday Night Entertainment Corp), Stock Option Agreement (Lyndoch Estate Wines, Inc.)
Piggyback Registration Rights. If, at any time during For the three-eight year period commencing on the date hereof, the Company proposes shall advise the Holder of the Note or is required the Note Shares by written notice at least two weeks prior to file the filing of any registration statement under the Act (other than a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 S-4, Form S-8 or Form S-8subsequent similar forms) covering securities of the Company and will upon the request of such holder, or include in any such other forms registration statement such information as may be required to permit a public offering of the U.S. Securities Note Shares; provided, however, that if the registration statement relates to a public offering by the Company of its securities and Exchange Commission may hereafter promulgate for registration the managing underwriters advise the Holder that the inclusion in the offering of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request being sold by the Holder within 10 days after receipt would adversely affect the ability of such notice, the Company shall use its commercially reasonable efforts to include in complete the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms public offering (and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreementother selling stockholders, if requiredany, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined beloware similarly advised), and provided that if then the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested Note Shares to be registered by the Holder as shall be reduced pro rata to the underwriters believe will extent necessary to reduce the amount of securities to be included in the offering to the amount recommended by the managing underwriters. The Holder hereby further agrees not jeopardize to make any sales of the success securities so included for a period of one hundred eighty (180) days from the effective date of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holderstatement. The Company shall have exclusive control over the preparation and filing of any keep such registration statement proposed current for a period of up to be filed under this Section 5 as well as any amendments and supplements thereto and six (6) months from the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision conclusion of such information as may reasonably one hundred eighty (180) day period; provided, however, that the Company shall not be requested by required to keep the Company, registration statement effective beyond the underwriter(s) or any other authorized parties and date after which the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may registration statement must be reasonably requested thereby, and the Holder’s compliance with all applicable lawsamended to include updated audited financial statements. The Company shall pay all reasonable expenses incurred supply prospectuses, qualify the Note Shares for sale in connection with such states as the registration contemplated hereby, including without limitation registration Holder reasonably requests and filing fees, printing expenses, and fees and expenses of counsel for furnish indemnification in the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary manner as set forth herein, in of this Article 2. Such holder shall furnish information and indemnification in the Holder hereby expressly agrees and acknowledges that any registration rights manner set forth in of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockthis Article 2.
Appears in 3 contracts
Samples: Convertible Note Agreement (Robinson Brog Leinwand Greene Genovese & Gluck Pc), Convertible Note Agreement (Pi Inc), Convertible Note (Quality Products Inc)
Piggyback Registration Rights. If, at any time during following the three-year period commencing on earlier of the date hereofClosing Date or the termination of the Merger Agreement in accordance with its terms, the Investor Beneficially Owns any Registrable Shares and the Company proposes or is required intends to file register any shares of the Company Common Stock under the Securities Act by filing a registration statement registering any or prospectus supplement on a form and in a manner that would permit registration of such shares of the Company Common Stock or securities convertible into or exchangeable for Common Stock sale to the public under the Securities Act (other than any registration of shares of the Company Common Stock on Form S-4 or Form S-8, S-8 or such other any similar forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereofany successor forms thereto), whether or not for its own accountthen the Company shall provide a written notice (the “Piggyback Notice”) to the Investor of such intention at least five (5) Business Days (provided that if the Company determines that a shorter notice period is required to avail itself of favorable market conditions, the Company shall give at least 20 days provide the Investor with no less than two (2) Business Days’ notice) prior written notice to any filing of such registration statement or prospectus supplement, as applicable, which Piggyback Notice shall offer the Investor an opportunity to include in such registration statement all or a portion of the Registrable Shares Beneficially Owned by the Investor on the terms and conditions (including any underwriting lock-ups and other restrictions) of the proposed offering. The Investor shall, to the Holder extent it is so permitted under the terms of its intention to do so. Upon written request the Agreement, have a reasonable period under the circumstances (that shall be determined in good faith by the Holder within 10 days Company, based on market conditions) after receipt delivery of such notice, the Piggyback Notice to notify the Company in writing that the Investor agrees to the terms and conditions of the proposed offering and elects to include all or a portion of the Registrable Shares in such offering, specifying the amount of the Registrable Shares to be included. Notwithstanding anything to the contrary contained in this paragraph (d), (i) the Investor shall use its commercially reasonable efforts not be entitled to elect to include any Registrable Shares in the Company’s offering pursuant to this paragraph (d) until it furnishes the information required by paragraph (f) and unless it is permitted to Transfer under Section 4.1 of the Agreement the Registrable Shares which the Investor requests to include in the securities Company’s offering, (ii) the Company shall have the right to terminate or withdraw any registration initiated by it prior to the effectiveness of such registration whether or not the Investor has elected to include all or a portion of the Registrable Shares in such registration, and (iii) if the registration contemplated by the Piggyback Notice is an underwritten registration, and to the extent the managing underwriters thereof in good faith advise the Company that in their opinion the number of Registrable Shares elected to be registered by included in such registration statement all Warrant Shares would cause the aggregate number of shares of the Company Common Stock to be offered to be greater than that the Holder indicates which can be sold in an orderly manner in such notice that the Holder desires offering within a price range acceptable to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, then the Company shall only not be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockRegistrable Shares.
Appears in 3 contracts
Samples: Investment and Strategic Cooperation Agreement (Henderson Group PLC), Investment and Strategic Cooperation Agreement (Henderson Group PLC), Investment and Strategic Cooperation Agreement (Janus Capital Group Inc)
Piggyback Registration Rights. IfThe Company covenants and agrees with the Placement Agent and any other Holders or subsequent Holders of the Registrable Securities that if, at any time during within the three-year period commencing on the date hereofIssue Date and ending five years after the Issue Date, the Company it proposes or is required to file a registration statement registering or Offering Statement with respect to any shares class of Common Stock equity or equity-related security under the Securities Act in a primary registration on behalf of the Company and/or in a secondary registration on behalf of holders of such securities convertible into and the registration form or exchangeable Offering Statement to be used may be used for Common Stock (registration of the Registrable Securities other than on Form S-4 S-8 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own accounttheir then equivalents, the Company will give prompt written notice (which, in the case of a registration statement or notification pursuant to the exercise of demand registration rights other than those provided in Section 8(a) of this Agreement, shall give be within ten (10) business days after the Company's receipt of notice of such exercise and, in any event, shall be at least 20 30 days prior written notice to such filing) to the Holder Holders of Registrable Securities (regardless of whether some of the Holders shall have therefore availed themselves of the right provided in Section 8(a) of this Agreement) at the addresses appearing on the records of the Company of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts file a registration statement or Offering Statement and will offer to include in the securities to be registered by such registration statement or Offering Statement all Warrant Shares that but not less than 20% of the Holder indicates Registrable Securities and limited, in such notice that the Holder desires case of a Regulation A offering, to sellthe amount of the available exemption, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to paragraphs (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securitiesof this paragraph (b), if such number of Registrable Securities with respect to which the Company so requests, on has received written requests for inclusion therein within ten (10) days after the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered giving of notice by the holders of the Preferred Stock (as defined below), and provided that if the number of shares Company. All registrations requested by the Holder pursuant to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, this paragraph (b) if the number of shares the Company is able are referred to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holderherein as "Piggyback Registrations". The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations All Piggyback Registrations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably paragraph (b) will be requested by made solely at the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock's expense.
Appears in 3 contracts
Samples: Warrant Agreement (Media Logic Inc), Warrant Agreement (Media Logic Inc), Warrant Agreement (Media Logic Inc)
Piggyback Registration Rights. If, (a) If the Company at any time during proposes to register under the three-year period commencing on the date hereof, the Company proposes or is required to file a registration statement registering Securities Act any shares of its Common Stock now or securities convertible into or exchangeable for Common Stock (hereafter authorized, other than a registration on Form S-4 or Form S-8, S-8 or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof)any successor form, whether or not for sale for its own accountaccount or for the account of any selling stockholder, on a form and in a manner that would permit registration of Registrable Securities for sale to the Company shall public under the Securities Act, it will give at least 20 days prior written notice to all the Holder holders of Registrable Securities promptly, and in any event no later than 20 days (10 days if the registration is a Form S-3) before the initial filing with the SEC of a registration statement, of its intention to do so, describing such securities and specifying the form and manner and the other relevant facts involved in such proposed registration (including, without limitation, (i) whether or not such registration will be in connection with an underwritten offering of securities and, if so, the identity of the managing underwriter and whether such offering will be pursuant to a "best efforts" or "firm commitment" underwriting, (ii) the price at which such securities are reasonably expected to be sold to the public, and (iii) the amount of the underwriting discount reasonably expected to be incurred in connection therewith). Upon the written request by of any such holder delivered to the Holder Company within 10 days after the receipt of any such noticenotice (which request shall specify the Registrable Securities intended to be disposed of by such holder and the intended method of disposition thereof), the Company will (subject to the provisions of Section 2.1(c) hereof) include in such registration all of the Registrable Securities that the Company has been so requested to register; provided, however, that if, at any time after giving such written notice of its intention to register any securities and prior to the effective date of the registration statement filed in connection with such registration, the Company shall use its commercially reasonable efforts determine for any reason not to include in the securities to be registered by proceed with such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offeringregistration, the Holder Company may at its election give written notice of such determination to each holder of Registrable Securities who made a request as hereinabove provided and thereupon the Company shall agree be relieved of its registration obligations (but not from its obligation to pay Registration Expenses in connection therewith).
(ib) enter into an underwriting agreement, if required, The Registration Expenses incurred in customary form connection with the underwriter or underwriters selected each registration of Registrable Securities requested pursuant to this Section 2.1 shall be paid by the Company, .
(c) If a registration pursuant to this Section 2.1 involves an Underwritten Offering and (ii) sell the Holder’s securities, if managing underwriter advises the Company so requeststhat, on in its opinion, the same basis and upon the same terms as the other securities covered by such registration statement, other than number of securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered included in such offering exceeds the amount number of securities which can be sold therein without adversely affecting the marketability of the offering, then the Company will promptly so advise each holder of Registrable Securities that has requested registration, and will include in such registration: first, authorized but unissued or treasury shares of Common Stock which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required desires to include in such offering that number of shares registration; and second, Registrable Securities requested to be registered by included therein and other outstanding shares of Common Stock requested to be included in such registration ("Other Securities"), allocated pro rata among the Holder as the underwriters believe will not jeopardize the success holders of such offering, (b) if Registrable Securities and Other Securities based on the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation Registrable Securities with respect to any which each such proposed holder has requested registration, including but not limited to in each case until the provision aggregate number of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any such registration hereunder, and all fees and expenses for counsel is equal to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignablenumber thereof that, in whole or in partthe opinion of such managing underwriter, can be sold without adversely affecting the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockmarketability thereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Easyriders Inc), Registration Rights Agreement (Easyriders Inc)
Piggyback Registration Rights. If, a. In case the Company shall at any time during determine to register any of its securities under the three-year period commencing on the date hereofSecurities Act, the Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. by way of Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form (the "COMMISSION") Forms S-4 or Form S-8 may be used as of the date hereof)S-8, whether or not for any successor form thereto, at its own accountinitiative, the Company shall will give at least 20 days prior written prompt notice thereof to the Holder of its intention Holder, and if so requested in writing by any person to do so. Upon written request by the Holder within 10 days after receipt of which such noticenotice shall have been properly provided, the Company will include among the securities which it then endeavors to make the subject of a registration statement to be filed under the Securities Act, or to qualify under such state securities laws, all or any part of such previously issued shares, or of the shares then eligible for issuance upon exercise of the Warrants as shall be specified in such request (the "DESIGNATED SHARES"), and the Company will use its commercially reasonable best efforts to include in the securities cause all such registrations, qualifications or compliances to be registered by such effected and to be kept effective for not less than 90 days.
b. Notwithstanding the foregoing, if at any time after the date hereof the Company files a registration statement all Warrant Shares that with respect to any of its securities in connection with a bona fide underwritten public offering of the Holder indicates in such notice that the Holder desires to sellsame, subject to the following terms and conditions: then (a) if such any Designated Shares which shall have been made the subject of a registration statement is filed for the purpose of qualifying shares under the Securities Act for future sale or which are, in connection with such a prospective underwritten offeringregistration, the Holder shall agree being or to (i) enter into an underwriting agreementbe included pursuant to Section 13, shall, if required, in customary form with the underwriter or underwriters selected so requested by the Companymanaging underwriter(s) and consented to by each applicable holder of Designated Shares, and (ii) sell be offered for sale through the Holder’s securities, if the Company so requests, underwriters on the same basis terms and upon conditions under which the same terms as the other Company's securities covered by such registration statement, other than securities proposed are to be registered by the holders of the Preferred Stock (as defined below)distributed, and provided that if the number of shares requested by the Holder managing underwriter(s) elect to -------- include less than all Designated Shares to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offeringoffered by selling shareholders, the Company shall only be required to include in such offering that number of shares requested those to be registered by included in the Holder underwritten portion of the offering shall be, as the underwriters believe will not jeopardize the success of such offeringto each holder thereof, as nearly equal in number as is practicable; and (b) if those Designated Shares which are not being distributed by the underwriters in such public offering shall be withheld from the market by the selling shareholders for a period, not to exceed 180 days, measured from the effective date of the registration statement by which such public offering is being effected, which the managing underwriter(s) determine necessary in order to stabilize the market for the underwritten shares. Notwithstanding the foregoing, in the event in the written opinion of such managing underwriter(s), the Designated Shares may not be included in the registration statement without having a material adverse effect on the Company's offering of it securities, the managing underwriter(s) shall have the right to eliminate or reduce the number of shares Designated Shares proportionately among the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable Holders.
c. All expenses incurred in connection with any registration, qualification or compliance effected by the registration contemplated herebyCompany pursuant to Section 13, including including, without limitation limitation, all registration and filing fees, fees and expenses of complying with federal and state securities laws, printing expenses, and fees and expenses disbursements of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel of any special audits incidental to or required by such registration (collectively, the Holder, "REGISTRATION EXPENSES") shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignableCompany, in whole or in part, without the prior written consent provided that each holder of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges Designated Shares shall be responsible for that portion of any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders underwriting commission incurred in connection with the purchase and sale underwritten distribution of the Preferred Stocksecurities made the subject of such registration effort as shall bear the same ratio to such commission as the value of the Designated Shares sold by the holder in the offering bears to the value of all Company securities sold in such offering.
Appears in 2 contracts
Samples: Warrant Agreement (Inc Ubator Capital Inc), Warrant Agreement (Inc Ubator Capital Inc)
Piggyback Registration Rights. (a) If, at any time during the three-seven (7) year period commencing beginning on the date hereof, the Company proposes first becomes subject to the periodic reporting obligations under the Exchange Act (i.e., following the Public Offering) or, if later, beginning on the date of expiration of any lock-up period applicable to the Founders or STI, there is required to file a not an effective registration statement registering under the Securities Act (a “Registration Statement”) covering all of the Shares held by the Founders and STI, and the Company shall determine to prepare and file with the Commission a Registration Statement relating to an offering for its own account or the account of others under the Securities Act of any shares of Common Stock or its equity securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, each as promulgated under the Securities Act, or such their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, employee benefit plans) then the Company shall give send to the Founders and STI a written notice of such determination at least 20 twenty (20) days prior to the filing of any such Registration Statement and shall include in such Registration Statement all of the Shares held by the Founders or STI for resale and offer on a continuous basis pursuant to Rule 415; provided, however, that (i) if, at any time after giving written notice to the Holder of its intention to do so. Upon written request by register any securities and prior to the Holder within 10 days after receipt effective date of the Registration Statement filed in connection with such noticeregistration, the Company shall use determines for any reason not to proceed with such registration, the Company will be relieved of its commercially reasonable efforts obligation to include register any Shares of the Founders or STI in connection with such registration, (ii) in case of a determination by the Company to delay registration of its securities, the Company will be permitted to delay the registration of such Shares for the same period as the delay in registering such other securities, (iii) each of the Founders and STI is subject to confidentiality obligations with respect to any information gained in the securities registration process or any other material non-public information he or it obtains, (iv) each of the Founders or STI, or the assignee or successor in interest thereof is subject to be registered by all applicable laws relating to xxxxxxx xxxxxxx or similar restrictions; and (v) the number of such Shares included in such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, shall be subject to cutback as provided below.
(b) If a registration subject to this Section 9.01 is initiated as a primary underwritten offering on behalf of the following terms Company and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the managing underwriter or underwriters selected by advises the Company, the Founders and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided STI in writing that if in its opinion the number of shares requested of Common Stock proposed to be included in such registration, including the Shares held by the Holder Founders or STI and all other shares of Common Stock proposed to be registered included in such underwritten offering, exceeds the number of shares of Common Stock that can be sold in such offering exceeds and/or that the amount number of shares which of Common Stock proposed to be included in any such registration would adversely affect the underwriters reasonably believe is compatible with price per share of the success of Common Stock to be sold in such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offeringregistration (i) first, (b) if the number of shares of Common Stock that the Company proposes to sell; (ii) second, the number of shares of Common Stock requested to be included therein by MDB and the holders of shares of Common Stock issued on conversion of the notes issued in the Note Financing (which shall be allocated among MDB and such holders in accordance with their respective Registration Rights Agreements); and (iii) third, the number of Shares requested to be included therein by the Founders and STI, allocated among the Founders and STI pro rata to their total holdings of Shares or in such other manner as they may agree.
(c) If a registration subject to this Section 9.01 is able initiated as an underwritten offering pursuant to register is limited due exercise of contractual demand registration rights by MDB, a purchaser of notes in the Note Financing or another party holding contractual demand registration rights, and the managing underwriter advises the Company in writing that in its opinion the number of shares of Common Stock proposed to Rule 415 be included in such registration, including the Shares held by the Founders or STI and all other SEC shelf shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock that can be sold in such offering and/or that the number of shares of Common Stock proposed to be included in any such registration ruleswould adversely affect the price per share of the Common Stock to be sold in such offering, the Company shall only include in such registration (i) first, the number of shares of Common Stock requested to be required to register included therein by the Warrant Shares the Holder elects to include on a pari passu basis holder(s) exercising such demand registration rights in accordance with the other terms of such rights, (ii) second, the number of shares being registered, other than any shares proposed of Common Stock requested to be registered included therein by MDB and/or the holders of shares of Common Stock issued on conversion of the Preferred Stocknotes issued in the Note Financing, to the extent MDB or such holders are not the parties exercising the applicable demand registration rights (and which shares of Common Stock shall be allocated among MDB and/or such holders in accordance with their respective Registration Rights Agreements); and (ciii) third, the Company may withdraw any such registration statement before it becomes effective or postpone the offering number of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed Shares requested to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested included therein by the CompanyFounders and STI, allocated among the underwriter(s) or any other authorized parties Founders and the execution and delivery STI pro rata to their total holdings of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole Shares or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockother manner as they may agree.
Appears in 2 contracts
Samples: Stockholders Agreement (Resonant Inc), Exchange Agreement (Resonant Inc)
Piggyback Registration Rights. If, at (a) At any time during the three-year period commencing on the date hereof, the Company proposes or is required to file a registration statement registering any shares of Registration Statement to register Common Stock or securities convertible into or exchangeable for Common Stock under the Securities Act (other than on Form S-4 pursuant to Sections 2.1 or Form S-82.2), or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof)to conduct an Underwritten Offering from an existing Shelf Registration Statement, whether or not for its own accountaccount (other than pursuant to a Registration Statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) or for the account of any person (other than a Holder pursuant to Sections 2.1 or 2.2), the Company shall give written notice thereof to each Holder at least 20 days prior written 10 Business Days before such filing or the commencement of such Underwritten Offering, as applicable, offering each Holder the opportunity to register on such Registration Statement or including in such Underwritten Offering, as applicable, such number of Registrable Securities as such Holder may request in writing not later than five Business Days after receiving such notice to in writing from the Holder of its intention to do soCompany (a “Piggyback Registration”). Upon written request receipt by the Holder within 10 days after receipt Company of any such noticerequest, the Company shall use its commercially reasonable efforts to include to, or in the securities case of an Underwritten Offering, use its commercially reasonable efforts to be registered by cause the Underwriters to, include such registration statement all Warrant Shares that the Holder indicates Registrable Securities in such Registration Statement (or in a separate Registration Statement concurrently filed) and to cause such Registration Statement to become effective with respect to such Registrable Securities. If no request for inclusion from a Holder is received by the Company within the deadlines specified above, such Holder shall have no further right to participate in such Piggyback Registration. Notwithstanding the foregoing, if at any time after giving written notice that of a registration in accordance with the Holder desires to sell, subject to the following terms and conditions: first sentence of this paragraph (a) if and before the effectiveness of the Registration Statement described in such notice, the Company determines for any reason either not to effect such registration statement is for a prospective underwritten offeringor to delay such registration, the Company may, at its election, by delivery of written notice to each Holder shall agree exercising its rights to Piggyback Registration, (i) enter into an underwriting agreementin the case of a determination not to effect registration, if required, relieve itself of its obligation to effect a Piggyback Registration of the Registrable Securities in customary form connection with the underwriter such registration or underwriters selected by the Company, and (ii) sell in the Holder’s securitiescase of a determination to delay registration, if delay the Company so requests, on Piggyback Registration of such Registrable Securities of the Holders for the same basis and upon the same terms period as the other securities covered by such delay in the registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offeringother Registrable Securities; provided, that in the Company shall only be required to include in such offering that number case of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the termination, withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registrationdelay, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, such Piggyback Registration shall be borne and paid entirely by the HolderCompany as set forth in Section 2.9. If any Holder requests inclusion in a registration pursuant to this Section 2.3, which Holder may, at any time before the effective date of the Registration Statement relating to such registration, revoke such request by delivering written notice of such revocation to the Company; provided, however, that if the Company, in consultation with its financial and legal advisors, determines that such revocation would materially delay the registration or otherwise require a recirculation of the prospectus contained in the Registration Statement, then such Holder shall have no right to so revoke his, her, or its request. The Company shall keep the Holder reasonably informed as to the status or expected timing of the launch of any Public Offering registered pursuant to any such Piggyback Registration. No registration rights and other rights granted in of Registrable Securities effected under this Section 5 are not assignable2.3 shall relieve the Company of its obligations to effect any Demand Registration pursuant to Section 2.1 or Shelf Registration pursuant to Section 2.2. The rights of Holders with respect to a Piggyback Registration shall be subject to Suspension Periods, as provided in Section 2.5. To the extent an Underwritten Offering is made under any such Registration Statement, all Holders exercising their right to Piggyback Registration must sell their Registrable Securities to the Underwriters selected as provided in Section 2.7(f) on the same terms and conditions as apply to the other securityholders selling in such Underwritten Offering.
(b) If a Piggyback Registration involves an Underwritten Offering (other than any Demand Registration, in whole which case the provisions with respect to priority of inclusion in such offering set forth in Section 2.1(c) shall apply or a Shelf Public Offering, in partwhich case the provisions with respect to priority of inclusion in such offering set forth in Section 2.2(c) shall apply) and the managing Underwriter advises the Company that, without in its view, the prior written consent number of Registrable Securities that the Holders and the Common Stock that the Company intend to include in such Underwritten Offering exceeds the Maximum Offering Size, the Company shall include in such Underwritten Offering the following securities, in the following priority, up to the Maximum Offering Size:
(i) first, all Common Stock that is requested to be included by the Company in the Underwritten Offering for its own account;
(ii) second, Registrable Securities that are requested to be included in the Underwritten Offering pursuant to this Section 2.3 by any Holder on a pro rata basis on the basis of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights requesting Holders’ beneficial ownership of the Holder hereunder Common Stock; and
(iii) third, all other securities that are subordinate requested to those be included in the Underwritten Offering for the account of any other Persons with such priorities among them as the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockCompany shall determine.
Appears in 2 contracts
Samples: Investor Rights Agreement (Tpi Composites, Inc), Investor Rights Agreement (Tpi Composites, Inc)
Piggyback Registration Rights. If, (a) If at any time during after the three-year period commencing on the date hereof, Closing Date the Company proposes or is required shall propose to file a registration statement registering any shares Registration Statement under the Securities Act relating to a public offering of the Common Stock or other equity securities convertible into or exchangeable for Common Stock of the Company (other than in connection with an Excluded Registration) for the Company’s own account or for the account of any holder of the Company’s equity securities, in each case, on Form S-4 or Form S-8, or such other forms as a registration form and in a manner that would permit the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions Registrable Securities for which Form S-4 or Form S-8 may be used as of sale to the date hereof), whether or not for its own accountpublic under the Securities Act, the Company shall (i) give written notice at least 20 days prior before the anticipated filing date to each Holder (other than any Holder that has provided written notice to the Company that such Holder elects not to receive notices from the Company pursuant to this Section 4(a)), specifying the approximate date on which the Company proposes to file such Registration Statement and advising such Holder of its intention right to do so. Upon written request by have any and all of the Holder within 10 days after receipt Registrable Securities of such notice, the Company shall use its commercially reasonable efforts to include in Holder included among the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sellcovered thereby, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, reduction in customary form accordance with the underwriter or underwriters selected by the CompanySection 6, and (ii) sell at the Holder’s securities, if written request of any such Holder given to the Company so requestswithin ten days after written notice from the Company has been given to such Holder, on include among the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if Registration Statement the number of shares Registrable Securities which such Holder shall have requested by the Holder to be registered so included, subject to reduction in such offering exceeds accordance with Section 6.
(b) Nothing in this Section 4 shall create any liability on the amount part of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, Company to any Holder if for any reason the Company shall only be required decide not to include in such offering that number of shares requested file, or to be registered by delay the Holder as the underwriters believe will not jeopardize the success of such offeringfiling of, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement Registration Statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject 4(a) or to withdraw such Registration Statement subsequent to the Holder’s cooperation with respect to filing thereof, regardless of any such proposed registrationaction whatsoever that a Holder may have taken, including but not limited to whether as a result of the provision of such information as may reasonably be requested issuance by the CompanyCompany of any notice hereunder or otherwise; provided, however, that the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall not be relieved of its obligation hereunder to pay all reasonable expenses incurred the Registration Expenses in connection with the registration contemplated hereby, including without limitation registration and any such filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockproposed filing.
Appears in 2 contracts
Samples: Registration Rights Agreement (SkyWater Technology, Inc), Registration Rights Agreement (SkyWater Technology, Inc)
Piggyback Registration Rights. (i) Each holder of Warrants or Warrant Shares is hereby granted the right to “piggyback” the Warrant Shares issuable and/or issued upon exercise of the Warrants (such shares being referred to herein as “Registrable Securities”) on each registration statement filed by the Company so long as the registration form to be used is suitable for the registration of the Registrable Securities (a “Piggyback Registration”) (it being understood that the Form S-8 and Form S-4 may not be used for such purposes), all at the Company’s cost and expense (except commissions or discounts and fees of any of the holders’ own professionals, if any; it being understood that the Company shall not be obligated to pay the fees of more than one counsel for the holders of the Registrable Securities); provided, however, that this paragraph (i) shall not apply to any Registrable Securities if such Registrable Securities may then be sold within a six (6) month period under Rule 144 (assuming the holder’s compliance with the provisions of the Rule) and the Company delivers an opinion to that effect to the transfer agent; and provided, further, that if the offering with respect to which a registration statement is filed is an underwritten primary or secondary offering of the Company’s securities and the managing underwriter advises the Company in writing that in its opinion the number of securities requested to be included in such registration exceeds the number that can be sold in such offering without adversely affecting such underwriter’s ability to effect an orderly distribution of such securities or otherwise adversely effecting such offering (including, without limitation, causing a diminution in the offering price of the Company’s securities) the Company will include in such registration statement: (A) first, the securities being sold for the account of the Company; (B) second, the number of securities with respect to which the Company has granted rights to participate in such registration (including the Registrable Securities) that, in the opinion of such underwriter, can be sold pro rata among the respective holders of such securities on the basis of the amount of such securities then owned by each such holder. The Company shall give each holder of Registrable Securities at least fifteen (15) days written notice of the intended filing date of any registration statement, other than a registration statement filed on Form S-4 or Form S-8 and each holder of Registrable Securities shall have seven (7) days after receipt of such notice to notify the Company of its intent to include the Registrable Securities in the registration statement.
(ii) If, at any time during after giving written notice of its intention to register any securities and prior to the three-year period commencing on effective date of the date hereof, the Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or filed in connection with such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own accountregistration, the Company shall give at least 20 days prior written notice determine for any reason not to the Holder of its intention register or to do so. Upon written request by the Holder within 10 days after receipt delay registration of such noticesecurities, the Company shall use may, at its commercially reasonable efforts election, give written notice of such determination to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock Registrable Securities and (as defined below)A) in the case of a determination not to register, and provided that if the number shall be relieved of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able its obligation to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred Registrable Securities in connection with the registration contemplated hereby, including without limitation such abandoned registration and filing fees, printing expenses, and fees and expenses (B) in the case of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating a determination to the Holder’s registered securities included in any delay such registration hereunder, and all fees and expenses for counsel to the Holderof its securities, shall be borne and paid by permitted to delay the Holder. The registration rights and of such Registrable Securities for the same period as the delay in registering such other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockCompany securities.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Emerald Dairy Inc), Securities Purchase Agreement (Emerald Dairy Inc)
Piggyback Registration Rights. If, If the Company at any time during the three-year period commencing on the date hereofproposes to register for sale any Common Shares, the Company proposes or is required pursuant to file a registration statement, including in each case pursuant to any shelf registration statement registering (including pursuant to clause (3) below) and including by effecting any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8underwritten public offering, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own accountaccount or for the account of any other person (including a Demand Party) (collectively, an “Offering”) (with customary exceptions to be negotiated and set out in the Company Registration Rights Agreement, including at-the-market offering programs, business combination transactions, dividend reinvestment plans, stock purchase plans, and employee benefit plans, which shall give at least 20 days prior written notice include, without limitation, any of the Company’s incentive compensation plans), each Demand Party shall be entitled to participate in such Offering; provided that the party who initiated such Offering (whether the Company, a Demand Party or another person entitled to registration rights) (the “Initiating Party”) shall have first priority to register and sell all of such securities that such Initiating Party requested to be sold and provided further that if the Initiating Party is a Demanding Holder, then other Demand Parties shall be entitled to participate on a pro rata basis with such Demanding Holder based on their relative percentage interests in the Company. After giving effect to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include priority in the securities preceding sentence, in the event that such Offering is:
(A) for the account of (i) the Company, then each Demand Party and any other person entitled to be registered by piggyback registration rights with respect to such registration statement all Warrant Shares that the Holder indicates shall be entitled to participate on a pro rata basis based on their relative percentage interests in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if any other person other than the Company so requestsor a Demand Party, then (x) each Demand Party and any other person entitled to piggyback registration rights with respect to such registration statement shall be entitled to participate on a pro rata basis based on their relative percentage interests in the same basis Company and upon the same terms as the (y) if a Demand Party and/or such other securities covered by person exercises piggyback registration rights with respect to such registration statement, other than the Company shall be entitled to participate up to the sum of the number of such securities proposed to be registered included by (A) the Demand Parties and (B) the other person(s), so long as the managing underwriter determines that inclusion of additional securities by the holders Company above such sum of the Preferred Stock (as defined belowA) and (B), and provided that if will not adversely affect the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the price or success of such underwritten offeringsale by the Initiating Party, the Demand Parties or any other participating person(s), provided that in all such cases set out in the foregoing clauses (i) and (ii), such participation would not, in the determination of the managing underwriter, adversely affect the price or success of such sale by the Initiating Party; or
(B) for the account of a Demand Party, then (i) any person other than a Demand Party entitled to piggyback registration rights with respect to such registration statement shall be entitled to participate on a pro rata basis based on their relative percentage interests in the Company and (ii) if any such other person exercises piggyback registration rights with respect to such registration statement, the Company shall only be required entitled to include in such offering that participate up to the sum of the number of shares requested such securities proposed to be registered included by such other person(s), so long as the managing underwriter determines that inclusion of additional securities by the Holder as the underwriters believe Company above such sum will not jeopardize adversely affect the price or success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered sale by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder Demand Parties or any other holder. The Company shall have exclusive control over participating person(s), provided that in all such cases set out in the preparation foregoing clauses (i) and filing (ii), such participation would not, in the determination of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal managing underwriter, adversely affect the price or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision success of such information as may reasonably be requested sale by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockInitiating Party.
Appears in 2 contracts
Samples: Cooperation Agreement (Southwest Gas Holdings, Inc.), Cooperation Agreement (Southwest Gas Holdings, Inc.)
Piggyback Registration Rights. IfAs used herein, a “Registration Statement” shall mean any registration statement filed by the Company with the Commission under the Securities Act at any time during the three-year period or from time to time commencing on a date within one year that any Underlying Shares may be issuable to the Holder and while any Registrable Securities remain outstanding; provided, however, that a Registration Statement for the purposes hereof shall not include: (A) any registration statement (or amendment thereto) filed by the Company which has not been declared effective on or before the date hereof; (B) any registration statement on Form S-3 (or any successor form) filed by the Company for the purpose of effecting offers and sales of securities on a continuous or delayed basis pursuant to Rule 415(a)(ix) or (x) under the Securities Act; (C) a registration relating to employee benefit plans (whether effected on Form S-8 or its successor); or (D) a registration effected on Form S-4 (or its successor). If at any time or from time to time while any Registrable Securities remain outstanding, the Company proposes shall determine to register or is shall be required to file a registration statement registering register any shares of its Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof)Stock, whether or not for its own account, the Company shall give shall:
(i) provide to each Holder written notice thereof at least 20 seven (7) days prior written notice to the Holder filing of its intention to do so. Upon the Registration Statement by the Company in connection with such registration;
(ii) include in such registration, and in any underwriting involved therein, all those Registrable Securities specified in a written request by each Holder received by the Holder Company within 10 five (5) days after receipt the Company mails the written notice referred to above. The Company may withdraw the registration at any time. If a registration covered by this Section 5.6 is an underwritten registration on behalf of the Company, and the underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such noticeregistration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company shall use its commercially reasonable efforts to include in such registration: (1) first, the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires Company proposes to sell, subject (2) second, the Registrable Securities and other securities requested to be included in such registration, pro rata among the selling Holders and any other selling security holders on the basis of the number of Registrable Securities owned by each such Holder and other selling security holders. The Holders’ right to have Registrable Securities included in the first registration statement filed by the Company may be deferred to the following terms second registration statement filed by the Company, which deferral may be continued to the third or subsequent registration statement so long as the registration statements are pursuant to underwritten offerings and conditions: the underwriter determines in good faith that marketing factors require exclusion of some or all of the Registrable Securities held by the Holders, but such deferral shall be only to the extent of such required exclusion as determined by the underwriter; and
(aiii) if such the registration statement is for a prospective an underwritten offeringregistration, the each Holder of Registrable Securities shall agree to (i) enter into an underwriting agreement, if required, agreement in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of provide such information as may regarding Holder that the underwriter shall reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred request in connection with the registration contemplated herebypreparation of the prospectus describing such offering, including without limitation registration and filing fees, printing expenses, and fees and expenses completion of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockFINRA Questionnaires.
Appears in 2 contracts
Samples: Note Exchange Agreement, Note Exchange Agreement (Authentidate Holding Corp)
Piggyback Registration Rights. If(i) Whenever the Company proposes to register any of its securities under the Securities Act, at either pursuant to an underwritten primary registration on behalf of the Company or pursuant to an underwritten secondary registration on behalf of a holder or holders of the Company's securities (other than on Form S-4, Form S-8 or any time during successor form) and the three-year period commencing on registration fxxx xx xx xxxd may be used for the date hereofregistration of any Registrable Securities (a "Piggyback Registration"), the Company proposes or is required will give written notice to file each holder of Registrable Securities of its intention to effect such a registration statement registering and will include in such registration all Registrable Securities (subject to, and in accordance with, the priorities set forth in Section 6(b)(ii) hereof), with respect to which the Company has received written requests for inclusion within ten (10) days after delivery of the Company's notice to each holder of Registrable Securities.
(ii) If the managing underwriter(s) advise the Company in writing, or the Board of Directors determines, that in their opinion, the number of Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability or pricing thereof, the Company will include in such registration up to an aggregate amount determined advisable by such underwriter(s): (i) first, any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, that the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and register; (ii) sell the Holder’s securitiessecond, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders any shares of the Preferred Common Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as holder(s) of Common Stock pursuant to which the underwriters believe will not jeopardize Registration Statement is being filed and to which the success holders of such offering, Registrable Securities hereunder are receiving Piggyback Registration; and (biii) if pro rata among the holders of Registrable Securities on the basis of the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed Registrable Securities which are requested to be registered by hereunder.
(iii) Notwithstanding anything herein to the holders of the Preferred Stock; and (c) contrary, the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation referred to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, 6(b) at any time in whole its sole discretion without thereby incurring any liability or in part, without the prior written consent of the Company. Notwithstanding anything expense to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockRegistrable Securities.
Appears in 2 contracts
Samples: Stock Purchase & Registration Rights Agreement (Startech Environmental Corp), Stock Purchase & Registration Rights Agreement (Startech Environmental Corp)
Piggyback Registration Rights. If, at any time during the three-year period commencing The Company shall include on the date hereofnext registration statement the Company files with SEC (or on the subsequent registration statement if such registration statement is withdrawn) all shares issuable upon conversion of the Note and all shares issuable upon exercise of the Warrant and Purchase Rights, and the bonus equity shares granted (the “Registrable Securities”). Failure to do so will result in liquidated damages of 25% of the outstanding principal balance of the Note, but not less than $100,000, being immediately due and payable to the Purchaser at its election in the form of cash payment provided however if the reason for such non-registration of all or any portion of the Registrable Securities is the result of either (i) in the case of an underwritten offering, the Company proposes managing underwriter as set forth below or is required to file (ii) SEC Guidance (as defined below) under Rule 415 or similar rule which limits the number of Registrable Securities which may be included in a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8with respect to Buyer, or such other forms no liquidated damages will be due and payable in to Buyer as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior written notice set forth above. Subject to the Holder terms of its intention to do so. Upon written request by the Holder within 10 days after receipt of such noticethis Agreement, the Company shall use its commercially reasonable efforts to include in keep such registration statement continuously effective under the securities 1933 Act until the first to be registered occur of: (A) the date that is one (1) year from the date the registration statement is declared effective by the SEC (the “Cut-Off Date”) and (B) the date that all Registrable Securities covered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreementhave been sold, if requiredthereunder or pursuant to Rule 144, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the Holder’s securitiesrequirement for the Company to be in compliance with the current public information requirement under Rule 144 (the “Effectiveness Period”). Notwithstanding the registration obligations set forth in this Section, if the SEC informs the Company so requeststhat all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale on the same basis and upon the same terms as the other securities covered by such a single registration statement, other than securities proposed the Company agrees to promptly inform Buyer and use its commercially reasonable efforts to file amendments to any registration statement as required by the SEC, covering the maximum number of Registrable Securities permitted to be registered by the holders SEC, on Form S-1 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent efforts to advocate with the SEC for the registration of all of the Preferred Stock Registrable Securities in accordance with any (as defined belowi) any publicly-available written or oral guidance of the SEC staff, or any comments, requirements or requests of the SEC staff and (ii) the Securities Act (collectively, “SEC Guidance”), including without limitation, Compliance and provided that Disclosure Interpretation 612.09. Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages set forth above, if the SEC or any SEC Guidance sets forth a limitation on the number of shares requested by the Holder Registrable Securities permitted to be registered on a particular registration statement (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows: (i) First, the Company shall reduce or eliminate any securities to be included by any person other than Buyer; (ii) Second, subject to written approval by Buyer, the Company shall reduce the Registrable Securities. In the event of a cutback hereunder, the Company shall give the Buyer at least five (5) Business Days prior written notice. In the event the Company amends the any registration statement in accordance with the foregoing, the Company will use its commercially reasonable efforts to file with the SEC, as promptly as allowed by the SEC or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-1 or such other form available to register for resale those Registrable Securities that were not registered on any prior registration statement filed with the SEC. In addition, if any rights granted pursuant to this Section involves the inclusion of securities in connection with an underwritten offering, and the managing underwriter (or, in the case of an offering that is not underwritten, an investment banker) shall advise the Company that, in its opinion, the number of securities requested and otherwise proposed to be included on such registration statement exceeds the number which can be sold in such offering exceeds without adversely affecting the amount marketability of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to will include in such offering that Registration to the extent of the number of shares requested to which the Company is so advised can be registered by the Holder as the underwriters believe will not jeopardize the success of sold in such offering, (b) if first, the number of shares securities the Company is able proposes to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include sell for its own account on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone and second, the offering Registrable Securities of securities contemplated by the Buyer requesting to be included on such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockstatement.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Avant Diagnostics, Inc), Securities Purchase Agreement (Avant Diagnostics, Inc)
Piggyback Registration Rights. If, at (a) At any time during the three-year period commencing on the date hereof, the Company proposes or is required to file a registration statement registering any shares of Registration Statement to register Common Stock or securities convertible into or exchangeable for Common Stock under the Securities Act (other than on Form S-4 pursuant to Section 2.1 or Form S-82.2), or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof)to conduct an Underwritten Offering from an existing Shelf Registration Statement, whether or not for its own accountaccount (other than pursuant to a Registration Statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) or for the account of any person (other than a Holder pursuant to Section 2.1 or 2.2), the Company shall give written notice thereof to each Holder at least 20 days prior written 10 Business Days before such filing or the commencement of such Underwritten Offering, as applicable, offering each Holder the opportunity to register on such Registration Statement or including in such Underwritten Offering, as applicable, such number of Registrable Securities as such Holder may request in writing not later than five Business Days after receiving such notice to in writing from the Holder of its intention to do soCompany (a “Piggyback Registration”). Upon written request receipt by the Holder within 10 days after receipt Company of any such noticerequest, the Company shall use its commercially reasonable efforts to include to, or in the securities case of an Underwritten Offering, use its commercially reasonable efforts to be registered by cause the Underwriters to, include such registration statement all Warrant Shares that the Holder indicates Registrable Securities in such Registration Statement (or in a separate Registration Statement concurrently filed) and to cause such Registration Statement to become effective with respect to such Registrable Securities. If no request for inclusion from a Holder is received by the Company within the deadlines specified above, such Holder shall have no further right to participate in such Piggyback Registration. Notwithstanding the foregoing, if at any time after giving written notice that of a registration in accordance with the Holder desires to sell, subject to the following terms and conditions: first sentence of this paragraph (a) if and before the effectiveness of the Registration Statement described in such notice, the Company determines for any reason either not to effect such registration statement is for a prospective underwritten offeringor to delay such registration, the Company may, at its election, by delivery of written notice to each Holder shall agree exercising its rights to Piggyback Registration, (i) enter into an underwriting agreementin the case of a determination not to effect registration, if required, relieve itself of its obligation to effect a Piggyback Registration of the Registrable Securities in customary form connection with the underwriter such registration or underwriters selected by the Company, and (ii) sell in the Holder’s securitiescase of a determination to delay registration, if delay the Company so requests, on Piggyback Registration of such Registrable Securities of the Holders for the same basis and upon the same terms period as the other securities covered by such delay in the registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offeringother Registrable Securities; provided, that in the Company shall only be required to include in such offering that number case of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the termination, withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registrationdelay, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, such Piggyback Registration shall be borne and paid entirely by the HolderCompany as set forth in Section 2.9. If any Holder requests inclusion in a registration pursuant to this Section 2.3, he, she, or it may, at any time before the effective date of the Registration Statement relating to such registration, revoke such request by delivering written notice of such revocation to the Company (which notice shall be effective only upon receipt by the Company, notwithstanding the provisions of Article II); provided, however, that if the Company, in consultation with its financial and legal advisors, determines that such revocation would materially delay the registration or otherwise require a recirculation of the prospectus contained in the Registration Statement, then such Holder shall have no right to so revoke his, her, or its request. The Company shall keep the Holder reasonably informed as to the status or expected timing of the launch of any Public Offering registered pursuant to any such Piggyback Registration. No registration rights and other rights granted in of Registrable Securities effected under this Section 5 are not assignable2.3 shall relieve the Company of its obligations to effect any Demand Registration pursuant to Section 2.1 or Shelf Registration pursuant to Section 2.2. The rights of Holders with respect to a Piggyback Registration shall be subject to Suspension Periods, as provided in Section 2.5. To the extent an Underwritten Offering is made under any such Registration Statement, all Holders exercising their right to Piggyback Registration must sell their Registrable Securities to the Underwriters selected as provided in Section 2.7(f) on the same terms and conditions as apply to the other securityholders selling in such Underwritten Offering.
(b) If a Piggyback Registration involves an Underwritten Offering (other than any Demand Registration, in whole which case the provisions with respect to priority of inclusion in such offering set forth in Section 2.1(c) shall apply or a Shelf Public Offering, in partwhich case the provisions with respect to priority of inclusion in such offering set forth in Section 2.2(c) shall apply) and the managing Underwriter advises the Company that, without in its view, the prior written consent number of Registrable Securities that the Holders and the Common Stock that the Company intend to include in such Underwritten Offering exceeds the Maximum Offering Size, the Company shall include in such Underwritten Offering the following securities, in the following priority, up to the Maximum Offering Size:
(i) first, all Common Stock that is requested to be included by the Company in the Underwritten Offering for its own account;
(ii) second, Registrable Securities that are requested to be included in the Underwritten Offering pursuant to this Section 2.3 by any Holder on a pro rata basis on the basis of the Company. Notwithstanding anything requesting Holders’ beneficial ownership of the Common Stock; provided that to the contrary set forth hereinextent a reduction in Registrable Securities included in the Underwritten Offering is so required, the Holder hereby expressly agrees and acknowledges that any registration rights calculation of the Holder hereunder are subordinate to those beneficial ownership of Registrable Securities shall not include any unvested Earn-out Shares and, for the holders avoidance of doubt, shall not include any Common Stock underlying the Company’s 10% (PIK) Series A Preferred Stock and prior to the Company’s 10% (PIK) Series B date such Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders is convertible in connection accordance with the purchase and sale Certificate of Incorporation; and
(iii) third, all other securities that are requested to be included in the Preferred StockUnderwritten Offering for the account of any other Persons with such priorities among them as the Company shall determine.
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (Infrastructure & Energy Alternatives, Inc.)
Piggyback Registration Rights. If, at any time during To the three-year period commencing on the date hereof, extent the Company proposes or is required to file does not maintain an effective registration statement for the shares of Class A Common Stock underlying the Warrant and in the further event that the Company files a registration statement registering any with the Commission covering the sale of its shares of Common Stock or securities convertible into or exchangeable for Class A Common Stock (other than a registration statement on Form S-4 or Form S-8, or on another form, or in another context, in which such other forms as “piggyback” registration would be inappropriate), then, for a period commencing on the U.S. Securities Initial Exercise Date and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as terminating on the fifth anniversary of the date hereof), whether or not for its own accountInitial Exercise Date, the Company shall give at least 20 days prior written notice of such proposed filing to the Holder as soon as practicable but in no event less than ten (10) business days before the anticipated filing date, which notice shall describe the amount and type of its intention securities to do so. Upon written request by be included in such offering, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and offer to the Holder in such notice the opportunity to register the sale of such number of shares of Class A Common Stock underlying the Warrant as such holders may request in writing within 10 five (5) business days after receipt of such notice, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below“Piggyback Registration”), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over cause such shares of Class A Common Stock underlying the preparation and filing of any registration statement proposed Warrant to be filed under this Section 5 as well included in such registration and shall use its best efforts to cause the managing underwriter or underwriters of a proposed underwritten offering to permit the shares of Class A Common Stock underlying the Warrant to be included in a Piggyback Registration on the same terms and conditions as any amendments similar securities of the Company and supplements thereto and to permit the withdrawal sale or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision other disposition of such information as may reasonably be requested by shares of Class A Common Stock underlying the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred Warrant in connection accordance with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses intended method(s) of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockdistribution thereof.
Appears in 2 contracts
Samples: Selling Agency Agreement (To the Stars Academy of Arts & Science Inc.), Selling Agency Agreement (To the Stars Academy of Arts & Science Inc.)
Piggyback Registration Rights. IfIf (but without any obligation to do so), at any time during the three-year period commencing on between the date hereofhereof and the Expiration Date, the Company proposes or is required to file a registration statement registering register any shares of Common Stock under the Act (including for this purpose any registration to be effected by the Company for any of its stockholders) in connection with the public offering of such securities solely for cash (other than a registration relating solely to the sale of securities to participants in a Company stock plan, a registration relating solely to an SEC Rule 145 transaction, a registration on any registration form which does not permit secondary sales or securities convertible into or exchangeable for a registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of Common Stock (other than on Form S-4 a "Registration Statement") or Form S-8, or such other forms as a registration in which the U.S. Securities and Exchange Commission may hereafter promulgate for registration only Common Stock being registered is Common Stock issuable upon conversion of debt securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereofare also being registered), whether or not for its own account, the Company shall shall, at such time, promptly give at least 20 days prior the Holder written notice of its intent to file such a Registration Statement. Upon the written request of the Holder given within ten (10) business days after the provision of its intention to do so. Upon written request such notice by the Holder within 10 days after receipt of such noticeCompany in accordance with Section 10, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sellshall, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offeringprovisions of this Section 17, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed cause to be registered by under the holders Act all of the Preferred Stock (as defined below), and provided that if the number of shares requested Warrant Shares then held by the Holder to be registered in and all of the Warrant Shares then issuable upon exercise of this Warrant (including without limitation such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities) that the Holder has requested to be registered by (the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements"Registrable Securities"), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating if the Holder may immediately sell all shares of Registrable Securities under Rule 144 during any 90-day period ending on the date on which notice is to be given under this Section 17(a), then the Company shall not be obligated to provide notice pursuant to this Section 17(a) or register any Warrant Shares pursuant to this Section 17. If, before June 30, 2004, all of the Registrable Securities have not been either (i) sold pursuant to Rule 144 as described in the preceding sentence or (ii) registered under the Act pursuant to the Holder’s registered securities included provisions of this Section 17 then, solely in any registration hereundersuch an event, the Expiration Date of this Warrant shall be extended to December 31, 2008 and all fees and expenses for counsel references herein to the Holder, such Expiration Date shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignabledeemed to mean December 31, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock2008.
Appears in 2 contracts
Samples: Warrant Agreement (Insite Vision Inc), Warrant Agreement (Insite Vision Inc)
Piggyback Registration Rights. If(a) Subject to Sections 5.03(b) and 5.04, until the one-year anniversary of this Agreement, if the Company at any time during the three-year period commencing on the date hereof, the proposes to register any Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into effect a take-down from a shelf Registration Statement for its own account (a “Company Registration”) or exchangeable for Common Stock the account of any Purchaser possessing demand rights (other than including in connection with a Registration Demand) (a “Stockholder Registration”) under the Securities Act by registration on Form S-4 S-1 or Form S-8, S-3 or any successor or similar form(s) (except registrations on any such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate form or similar form(s) for registration of securities in transactions for which Form S-4 connection with an employee benefit plan, a dividend reinvestment plan or Form S-8 may be used as a merger or consolidation, or incidental to an issuance of securities under Rule 144A under the date hereofSecurities Act), whether or not for its own account, the Company shall it will at such time give at least 20 days prior written notice as promptly as reasonably practicable to the Holder holders of Registrable Shares of its intention to do so, including the anticipated filing date of the Registration Statement or prospectus supplement, as the case may be, and, if known, the number of shares of Company Common Stock that are proposed to be included in such Registration Statement or prospectus supplement, as the case may be, and of the rights under this Section 5.03. Upon the written request of a holder of Registrable Shares (which request shall specify the maximum number of Registrable Shares intended to be disposed of by such holder and such other information as is reasonably required to effect the Holder registration of such shares of Company Common Stock), made as promptly as practicable and in any event within 10 days 15 Business Days after the receipt of any such noticenotice (five Business Days if the Company states in such written notice or gives telephonic notice to such Purchaser, with written confirmation to follow promptly thereafter, stating that (i) such registration will be on Form S-3 and (ii) such shorter period of time is required because of a planned filing date), the Company Company, subject to Section 5.04, shall use its commercially reasonable efforts to include in effect the securities to be registered by such registration statement under the Securities Act of all Warrant Registrable Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if which the Company has been so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed requested to be registered register by the holders of Registrable Shares; provided, however, that if, at any time after giving written notice of its intention to register any securities and prior to the Preferred Stock (as defined below)effective date of the Registration Statement filed in connection with such registration or, and provided that if the number applicable, filing of shares requested by the Holder a prospectus supplement with respect to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required determine for any reason not to include in such offering that number of shares requested register or to be registered by the Holder as the underwriters believe will not jeopardize the success delay registration of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rulessecurities, the Company shall only be required give written notice of such determination to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of Registrable Shares requesting registration under this Section 5.03 (which such holders will maintain in strict confidence) and (A) in the Preferred Stockcase of a determination not to register, shall be relieved of its obligation to register any Registrable Shares in connection with such registration (but not from any obligation of the Company to pay the Registration Expenses in connection therewith), and (B) in the case of a determination to delay registering, shall be permitted to delay registering any Registrable Shares, for the same period as the delay in registering such other securities.
(b) The piggyback registration rights in Section 5.03(a) shall not be available in respect of any Company Registration in which a stated use of proceeds in such offering is the financing by the Company of the acquisition of a business or assets announced prior to the date Table of Contents of the Company Registration; and provided, however that if any Company officer or member of the Board of Directors or stockholder holding 1% or more of the outstanding shares of Company Common Stock is participating in such offering, the Company shall to the extent reasonably practicable allow holders of Registrable Shares to participate on substantially similar terms.
(c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering Each holder of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company Registrable Shares shall have exclusive control over the preparation and filing right to withdraw its request for inclusion of such Registrable Shares in any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations Registration Statement pursuant to this Section 5 are subject 5.03 at any time prior to the Holder’s cooperation launch of the roadshow with respect to any such proposed registrationoffering (or if there is no roadshow, including but not limited the filing of the final preliminary prospectus with respect to such offering) by giving written notice to the provision Company of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating its request to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockwithdraw.
Appears in 1 contract
Piggyback Registration Rights. IfThe Company covenants and agrees with the Representative and any other Holders or subsequent Holders of the Registrable Securities that if, at any time during within the three-year period commencing one year and ending four years after the Effective Date, it proposes to file a Registration Statement with respect to any class of security (other than in connection with an offering to the Company’s employees) under the Act in a primary registration on behalf of the date hereofCompany and/or in a secondary registration on behalf of holders of such securities and the registration form to be used may be used for registration of the Registrable Securities, the Company proposes will give prompt written notice (which in the case of a Registration Statement or is required notification pursuant to the exercise of demand registration rights other than those provided in Section 10(a) of this Agreement, shall be within ten (10) business days after the Company’s receipt of notice of such exercise, in any event, shall be at least 30 days prior to such filing) to, the Holders of Registrable Securities (regardless of whether some of the Holders shall have theretofore availed themselves of the right provided in Section 10(a) of this Agreement) at the addresses appearing on the records of the Company of its intention to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts will offer to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sellstatement, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to sub-paragraphs (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securitiesof this paragraph (b), if such number of Registrable Securities with respect to which the Company so requests, on has received written requests for inclusion therein within ten (10) days after the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered giving of notice by the holders of the Preferred Stock (as defined below), and provided that if the number of shares Company. All registrations requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 10(b) are subject referred to the Holder’s cooperation with respect herein as “Piggyback Registrations,” All Piggyback Registrations pursuant to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of 10(b) will be made solely at the Company’s 10% (PIK) Series A Preferred Stock and expense. This paragraph is not applicable to a Registration Statement filed by the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection Company with the purchase and sale of the Preferred StockCommission on Forms S-4 or S-8 or any successor forms.
Appears in 1 contract
Piggyback Registration Rights. If, at any time during the three-year period commencing on the date hereof, (i) If the Company proposes or is required to file a registration statement registering Registration Statement (other than a Registration Statement (A) on Form S-8 or any shares successor form applicable to employee benefit-related offers and sales, (B) where the securities being offered are not being sold for cash or (C) where the offering is a bona fide offering of Common Stock or securities not of the same class as the Registrable Shares, even if such securities are convertible into or exchangeable or exercisable for securities of the same class as the Registrable Shares) with respect to a primary or secondary offering by the Company of Company Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereofa secondary offering pursuant to Section 2.01(a), whether or not for its own account), the Company shall give at least written notice (a “Piggyback Notice”) of such proposed filing to the Holders as soon as practicable (but in no event less than 20 days before the anticipated filing date), and such notice shall offer the Holders the opportunity to register (a “Piggyback Registration”) such number of Registrable Shares as each such Holder may request.
(ii) Any Holder wishing to exercise piggyback registration rights shall notify the Company in writing prior written notice to the Holder of its intention to do so. Upon written request by deadline specified in the Holder within Piggyback Notice (which deadline shall be reasonable and, in any event, not less than 10 days after receipt the date of such notice, Piggyback Notice) of the Company shall use its commercially reasonable efforts to include in the securities number of Registrable Shares requested to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject Holder. Subject to the following terms and conditions: (acutback requirements set forth in Section 2.01(d) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that the Registration Statement the number of shares Registrable Shares requested to be registered included by the Holder as the underwriters believe will not jeopardize the success each Holder.
(iii) Notwithstanding delivery of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rulesa Piggyback Notice, the Company shall only be required may in its sole discretion delay filing a Registration Statement, or withdraw a Registration Statement at any time prior to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before time it becomes effective effective, or postpone delay or suspend the offering effectiveness of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stocka Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Trans World Entertainment Corp)
Piggyback Registration Rights. IfThe Company covenants and agrees with the Purchaser and any other Holders or subsequent Holders of the Registrable Securities that if, at any time during within the three-year period commencing on one year and ending five years after the date hereofof this Agreement, the Company it proposes or is required to file a registration statement registering with respect to any shares class of Common Stock equity or securities convertible into or exchangeable for Common Stock equity-related security (other than in connection with an offering to the Company's employees or in connection with an acquisition, merger or similar transaction) under the Act in a primary registration on Form S-4 or Form S-8, or behalf of the Company and/or in a secondary registration on behalf of holders of such other forms as securities and the U.S. Securities and Exchange Commission registration form to be used may hereafter promulgate be used for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own accountRegistrable Securities, the Company will give prompt written notice (which, in the case of a registration statement or notification pursuant to the exercise of demand registration rights other than those provided in Section 10(a) of this Agreement, shall give be within ten (10) business days after the Company's receipt of notice of such exercise and, in any event, at least 20 30 days prior written notice to such filing) to the Holder Holders of Registrable Securities (regardless of whether some of the Holders have theretofore availed themselves of the right provided in Section 10(a) of this Agreement) at the addresses appearing on the records of the Company of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts file a registration statement and will offer to include in the securities to be registered by such registration statement all Warrant Shares that any of the Holder indicates in such notice that the Holder desires to sell, Registrable Securities subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to paragraphs (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securitiesof this paragraph (b), if such number of Registrable Securities with respect to which the Company so requests, on has received written requests for inclusion therein within ten (10) days after the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered giving of notice by the holders of the Preferred Stock (as defined below), and provided that if the number of shares Company. All registrations requested by the Holder pursuant to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, this paragraph (b) if the number of shares the Company is able are referred to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holderherein as "Piggyback Registrations". The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations All Piggyback Registrations pursuant to this paragraph (b) will be made solely at the Company's expense (other than as provided in Section 5 are subject 10(d) hereof). This paragraph is not applicable to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested a registration statement filed by the Company, Company with the underwriter(s) Commission on Forms S-4 or S-8 or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stocksuccessor forms.
Appears in 1 contract
Piggyback Registration Rights. If, at At any time during the three-year period commencing on after the date hereof, if the Company proposes or is required to determines that it will file a registration statement registering any shares under the Securities Act of Common Stock or securities convertible into or exchangeable for Common Stock 1933, as amended (the "1933 Act") (other than a registration statement on a Form S-4 or Form S-8S-8 or filed in connection with an exchange offer, an offering of securities solely to the Company's existing stockholders or a rights offering by the Company) on any form that would also permit the registration of the Shares acquired pursuant to the exercise of the Option, to the extent certificates are delivered therefor pursuant to Section 5(b) hereof, which the number of such other forms shares shall be measured as of the U.S. date such registration statement is initially filed with the Securities and Exchange Commission may hereafter promulgate (the "Registrable Stock"), and such filing is to be on the Company's behalf and/or on behalf of selling holders of its securities for the general registration of securities in transactions its Class A Common Stock to be sold for which Form S-4 or Form S-8 may be used as cash, at such time the Company will within thirty (30) days of such determination give the Participant written notice of such determination setting forth the date hereof), whether or not for its own account, on which the Company shall give at least 20 proposes to file such registration statement, which date will be no earlier than thirty (30) days prior written notice to from the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt date of such notice, and advising the Participant of his right to have Registrable Stock included in such registration. Upon the written request of the Participant received by the Company shall no later than fifteen (15) days after the date of the Company's notice, the Company will use its commercially reasonable best efforts to include cause to be registered under the 1933 Act all of the Registrable Stock that the Participant has so requested to be registered. If, in the opinion of the managing underwriter or underwriters (or, in the case of a non-underwritten offering, in the opinion of the Company), the total amount of such securities to be registered by so registered, including such registration statement all Warrant Shares Registrable Stock, will exceed the maximum amount of the Company's securities that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to can be marketed (i) enter into an underwriting agreementat a price reasonably related to the then current market value of such securities, if requiredor (ii) without otherwise materially and adversely affecting the entire offering, then the Registrable Stock shall not be included in customary form with such registration. If the underwriter or underwriters selected Series B Preferred Stockholders of the Company restrict the registration of common shares of the Company held by other holders of common shares of the Company, and (ii) sell the Holder’s securitiesthen, if the Company in that event, they may also so requests, on restrict to the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with extent the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses rights hereunder of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockOptionee.
Appears in 1 contract
Samples: Executive Employment Agreement (Wyndham International Inc)
Piggyback Registration Rights. If, If at any time during the three-two year period commencing on following the date hereof, execution of this Agreement (the Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof"Registration Rights Period"), whether or not for its own account, the Company shall determine to proceed with the actual preparation and filing of a registration statement under the Act in connection with the proposed offer and sale of any of its securities by it or any of its security holders (other than a registration statement on Form S-4, S-8 or other limxxxx xxxpose form), the Company will give at least 20 days prior written notice of its determination to the Holder of its intention to do soConsultants. Upon the written request by from the Holder Consultants within 10 15 days after receipt of any such noticenotice from the Company, the Company shall use its commercially reasonable efforts to include in will, except as herein provided, cause all the securities Shares to be registered by such registration statement all Warrant Shares that the Holder indicates included in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, to the extent requisite to permit the sale or other than securities proposed disposition by the prospective seller or sellers of the Shares to be registered by the holders of the Preferred Stock (as defined below)so registered; provided, and provided further, that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, nothing herein shall prevent the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offeringfrom, (b) if the number of shares the Company is able to register is limited due to Rule 415 at any time, abandoning or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than delaying any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holderregistration. The Company shall have exclusive control over the preparation and filing of If any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, 6.1 shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, underwritten in whole or in part, without the prior written consent Company may require that the Shares requested for inclusion pursuant to this Section 6.1 be included in the underwriting on the same terms and conditions as the securities otherwise being sold through the underwriters. If in the good faith judgment of the managing underwriter of such public offering the inclusion of all of the Shares originally covered by a request for registration (the "Requested Stock") would reduce the number of shares to be offered by the Company or interfere with the successful marketing of the shares of stock offered by the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any number of shares of Requested Stock otherwise to be included in the underwritten public offering may be reduced pro rata (by number of shares) among the holders thereof requesting such registration rights or excluded in their entirety if so required by the underwriter. To the extent only a portion of the Holder hereunder Requested Stock is included in the underwritten public offering, those shares of Requested Stock which are subordinate thus excluded from the underwritten public offering shall be withheld from the market by the holders thereof for a period, not to those exceed 90 days, which the managing underwriter reasonably determines is necessary in order to effect the underwritten public offering. The obligation of the holders Company under this Section 6.1 shall not apply to any of the Company’s 10% (PIKShares that at such time are eligible for immediate resale pursuant to Rule 144(k) Series A Preferred Stock under the Act. The Company shall pay the expenses described in Section 6.2 for the registration statement filed pursuant to this Section 6.1, except for underwriting discounts and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) commissions and warrants issued to such holders in connection with the purchase and sale legal fees of the Preferred StockRequesting Holders, which shall be borne by the Requesting Holders.
Appears in 1 contract
Samples: Financial Public Relations Agreement (Gk Intelligent Systems Inc)
Piggyback Registration Rights. IfFor a period of three (3) years from the closing of the Corporation’s IPO, if at any time during the three-year period commencing on the date hereof, the Company proposes or is required Corporation shall determine to file register in a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not public offering for its own accountaccount (or the account of selling stockholders) under the 1933 Act any of its Common Stock, it shall send to the Company shall give at least 20 days prior Purchaser written notice to the Holder of its intention to do so. Upon written request by the Holder such determination and, if within 10 twenty (20) days after receipt of such notice, the Company Purchaser shall so request in writing, the Corporation shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant or any part of the Shares that such Purchaser requests to be registered. This right shall not apply to a registration of shares of Common Stock on Form S-4 or Form S-8 (or their then equivalents) relating to shares of Common Stock to be issued by the Holder indicates Corporation in such notice that connection with any acquisition of any entity or other business combination involving the Holder desires Corporation, or shares of Common Stock issuable in connection with any stock option, stock compensation or other employee benefit plan of the Corporation for the benefit of employees, officers, directors or consultants of the Corporation. If, in connection with any offering involving an underwriting or best efforts placement of Common Stock to sell, subject to be issued by the following terms and conditions: (a) if such registration statement is for a prospective underwritten offeringCorporation and/or selling stockholders, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the managing underwriter or underwriters selected by the Companysales agent, and (ii) sell as applicable, of such offering or the Holder’s securities, if the Company so requests, Corporation shall impose a limitation on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offeringCommon Stock which may be included in any such registration statement because, in its judgment, such limitation is necessary to effect an orderly public distribution of the Company Common Stock and to maintain a stable market for the securities of the Corporation, then the Corporation shall only be required obligated to include in such offering that number registration statement only such limited portion (which may be none) of shares the Shares with respect to which the Purchaser has requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offeringinclusion thereunder, (b) if pro rata based upon the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any originally requested for inclusion in such registration statement before it becomes effective by all selling stockholders requesting inclusion thereunder. In the case of a registration under Section 3(b) or postpone this paragraph (c), the offering Corporation shall bear the expenses of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including including, but not limited to, printing, legal and accounting expenses, Securities and Exchange Commission and FINRA filing fees and all related “Blue Sky” fees and expenses; provided, however, that the Corporation shall have no obligation to pay or otherwise bear any portion of the underwriters’ commissions or discounts attributable to the provision of such information as may reasonably be requested Shares being offered and sold by the CompanyPurchaser, or the underwriter(s) fees and expenses of any counsel, tax advisor or any other authorized parties and accountant selected by the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred Purchaser in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockShares.
Appears in 1 contract
Piggyback Registration Rights. If(a) The Company covenants and agrees with any holder of the Warrants or Warrant Shares (the "Registrable Securities") that if, at any time during within the three-year period commencing on the date hereofInitial Exercise Date and ending on the Termination Date, the Company it proposes or is required to file a registration statement registering with respect to any shares class of Common Stock equity or securities convertible into or exchangeable for Common Stock equity-related security (other than in connection with an offering to the Company's employees or in connection with an acquisition, merger or similar transaction) under the Securities Act in a primary registration on Form S-4 or Form S-8, or behalf of the Company and/or in a secondary registration on behalf of holders of such other forms as securities and the U.S. Securities and Exchange Commission registration form to be used may hereafter promulgate be used for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own accountRegistrable Securities, the Company will give prompt written notice (which, in the case of a registration statement pursuant to the exercise of demand registration rights shall give be within ten (10) business days after the Company's receipt of notice of such exercise and, in any event, shall be at least 20 30 days prior written notice to such filing) to the Holder holders of Registrable Securities at the addresses appearing on the records of the Company of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts file a registration statement and will offer to include in the securities to be registered by such registration statement all Warrant Shares that all, but not less than 20% of the Holder indicates in such notice that the Holder desires to sellRegistrable Securities, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to paragraphs (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securitiesof this Section 11(a), if such number of Registrable Securities with respect to which the Company so requests, on has received written requests for inclusion therein within ten (10) days after the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered giving of notice by the holders of the Preferred Stock (as defined below), and provided that if the number of shares Company. All registrations requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 11(a) are subject referred to herein as "Piggyback Registrations". All Piggyback Registrations pursuant to this Section 11 will be made solely at the Holder’s cooperation with respect Company's expense. This Section is not applicable to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested a registration statement filed by the Company, the underwriter(s) Company on Forms S-4 or S-8 or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stocksuccessor forms.
Appears in 1 contract
Samples: Securities Agreement (Houston American Energy Corp)
Piggyback Registration Rights. If, at At any time during the three-year period commencing on after the date hereof, if the Company proposes or is required to determines that it will file a registration statement registering any shares under the Securities Act of Common Stock or securities convertible into or exchangeable for Common Stock 1933, as amended (the "1933 Act") (other than a registration statement on a Form S-4 or Form S-8S-8 or filed in connection with an exchange offer, an offering of securities solely to the Company's existing stockholders or a rights offering by the Company) on any form that would also permit the registration of the Shares acquired pursuant to the exercise of the Option, to the extent certificates are delivered therefor pursuant to Section 5(b) hereof, which the number of such other forms shares shall be measured as of the U.S. date such registration statement is initially filed with the Securities and Exchange Commission may hereafter promulgate (the "Registrable Stock"), and such filing is to be on the Company's behalf and/or on behalf of selling holders of its securities for the general registration of securities in transactions its Class A Common Stock to be sold for which Form S-4 or Form S-8 may be used as cash, at such time the Company will within thirty (30) days of such determination give the Participant written notice of such determination setting forth the date hereof), whether or not for its own account, on which the Company shall give at least 20 proposes to file such registration statement, which date will be no earlier than thirty (30) days prior written notice to from the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt date of such notice, and advising the Participant of his right to have Registrable Stock included in such registration. Upon the written request of the Participant received by the Company shall no later than fifteen (15) days after the date of the Company's notice, the Company will use its commercially reasonable best efforts to include cause to be registered under the 1933 Act all of the Registrable Stock that the Participant has so requested to be registered. If, in the opinion of the managing underwriter or underwriters (or, in the case of a non-underwritten offering, in the opinion of the Company), the total amount of such securities to be registered by so registered, including such registration statement all Warrant Shares Registrable Stock, will exceed the maximum amount of the Company's securities that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to can be marketed (i) enter into an underwriting agreementat a price reasonably related to the then current market value of such securities, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell without otherwise materially and adversely affecting the Holder’s securitiesentire offering, if then the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to Registrable Stock shall not be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered included in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.
Appears in 1 contract
Samples: Executive Employment Agreement (Wyndham International Inc)
Piggyback Registration Rights. If(a) Subject to Sections 5.03(b) and 5.04, until the one (1)-year anniversary of this Agreement, if the Company at any time during the three-year period commencing on the date hereof, the proposes to register any Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into effect a take-down from a shelf Registration Statement for its own account (a “Company Registration”) or exchangeable for Common Stock the account of any Purchaser possessing demand rights (other than including in connection with a Registration Demand) (a “Stockholder Registration”) under the Securities Act by registration on Form S-4 S-1 or Form S-8, S-3 or any successor or similar form(s) (except registrations on any such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate form or similar form(s) for registration of securities in transactions for which Form S-4 connection with an employee benefit plan, a dividend reinvestment plan or Form S-8 may be used as a merger or consolidation, or incidental to an issuance of securities under Rule 144A under the date hereofSecurities Act), whether or not for its own account, the Company shall it will at such time give at least 20 days prior written notice as promptly as reasonably practicable to the Holder holders of Registrable Shares of its intention to do so, including the anticipated filing date of the Registration Statement or prospectus supplement, as the case may be, and, if known, the number of shares of Company Common Stock that are proposed to be included in such Registration Statement or prospectus supplement, as the case may be, and of the rights under this Section 5.03. Upon the written request of a holder of Registrable Shares (which request shall specify the maximum number of Registrable Shares intended to be disposed of by such holder and such other information as is reasonably required to effect the Holder registration of such shares of Company Common Stock), made as promptly as practicable and in any event within 10 days fifteen (15) Business Days after the receipt of any such noticenotice (five (5) Business Days if the Company states in such written notice or gives telephonic notice to such Purchaser, with written confirmation to follow promptly thereafter, stating that (i) such registration will be on Form S-3 and (ii) such shorter period of time is required because of a planned filing date), the Company Company, subject to Section 5.04, shall use its commercially reasonable efforts to include in effect the securities to be registered by such registration statement under the Securities Act of all Warrant Registrable Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if which the Company has been so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed requested to be registered register by the holders of Registrable Shares; provided, however, that if, at any time after giving written notice of its intention to register any securities and prior to the Preferred Stock (as defined below)effective date of the Registration Statement filed in connection with such registration or, and provided that if the number applicable, filing of shares requested by the Holder a prospectus supplement with respect to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required determine for any reason not to include in such offering that number of shares requested register or to be registered by the Holder as the underwriters believe will not jeopardize the success delay registration of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rulessecurities, the Company shall only be required give written notice of such determination to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of Registrable Shares requesting registration under this Section 5.03 (which such holders will maintain in strict confidence) and (A) in the Preferred Stockcase of a determination not to register, shall be relieved of its obligation to register any Registrable Shares in connection with such registration (but not from any obligation of the Company to pay the Registration Expenses in connection therewith), and (B) in the case of a determination to delay registering, shall be permitted to delay registering any Registrable Shares, for the same period as the delay in registering such other securities.
(b) The piggyback registration rights in Section 5.03(a) shall not be available in respect of any Company Registration in which a stated use of proceeds in such offering is the financing by the Company of the acquisition of a business or assets announced prior to the date of the Company Registration; and provided, however that if any Company officer or member of the Board of Directors or stockholder holding 1% or more of the outstanding shares of Company Common Stock is participating in such offering, the Company shall to the extent reasonably practicable allow holders of Registrable Shares to participate on substantially similar terms.
(c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering Each holder of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company Registrable Shares shall have exclusive control over the preparation and filing right to withdraw its request for inclusion of such Registrable Shares in any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations Registration Statement pursuant to this Section 5 are subject 5.03 at any time prior to the Holder’s cooperation launch of the roadshow with respect to any such proposed registrationoffering (or if there is no roadshow, including but not limited the filing of the final preliminary prospectus with respect to such offering) by giving written notice to the provision Company of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating its request to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockwithdraw.
Appears in 1 contract
Piggyback Registration Rights. If, at In the case of any time during proposed registration by the three-year period commencing Company of shares of capital stock or other securities of the Company under the Securities Act of 1933 on any form (other than form S-8) that also would be eligible for use by Xxxxxx or its assignees in respect of the date hereofOption Shares, the Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall will give at least 20 30 days prior written notice of the filing or proposed filing of a registration statement to Xxxxxx.
(i) Xxxxxx shall have the Holder of its intention right to do so. Upon written request by the Holder elect within 10 20 days after receipt of such notice, the Company shall use its commercially reasonable efforts notice to include in the securities to be registered by such registration statement all Warrant or any part of the Option Shares, which election shall be made by notice to the Company within such 20-day period specifying the number of Option Shares that the Holder indicates in such notice that the Holder Xxxxxx desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if requiredso include; provided that, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securitiescase of an underwritten public offering, if the Company so requests, on managing underwriter participating in the same basis sale and upon distribution of the same terms as the other Company's securities covered by such registration statement, other than securities proposed to be registered by statement advises the holders Company in good faith and in writing that inclusion of some or all of the Preferred Stock Option Shares which Xxxxxx has requested be included in such registration statement would materially and adversely affect the marketing of the entire offering of securities, then Xxxxxx shall be entitled to include in the aggregate only such number of Option Shares (the "Permissible Shares") as defined below)such managing underwriter shall in good faith advise the Company in writing may be included without, in the opinion of the managing underwriter, materially and provided adversely affecting the marketing of the entire offering of securities. If the aggregate number of Option Shares that if Xxxxxx shall have requested be included in such registration statement exceeds the number of shares requested Permissible Shares, then Xxxxxx, at its option, shall be entitled to include the Permissible Shares in the registration statement to be filed by the Holder Company or may withdraw its election to be registered include all or a portion of the Option Shares in such offering exceeds registration statement.
(ii) The Company shall be obligated to afford Xxxxxx of the amount of shares which the underwriters reasonably believe is compatible right to participate in each and every such registration taking place in accordance with the success provisions of such underwritten offeringthis Section 8 until (i) three (3) years from the date on which Xxxxxx last acquired any Option Shares or (ii) Xxxxxx no longer shall own, directly or indirectly, any Option Shares. Notwithstanding anything contained herein to the contrary, the Company shall only be required to include in such offering agrees that number of shares requested it will not permit or agree to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunderstatement any shares of capital stock or other securities of the Company held by any person other than the Company until all outstanding Option Shares have been included in registration statements and sold, unless, in the case of each such registration, Xxxxxx first shall have been offered, and declined, the opportunity to include all fees of the Option Shares in a registration statement filed with and expenses for counsel to the Holder, shall be borne and paid declared effective by the Holder. The registration rights Securities and other rights granted in this Section 5 are not assignable, in whole or in part, without Exchange Commission (the prior written consent "Commission") under the Securities Act of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock1933.
Appears in 1 contract
Samples: Option Agreement (Essex Corporation)
Piggyback Registration Rights. If, at any time during after the threeInitial Closing Date while Seaside holds any Shares that are not eligible to be sold without volume or manner-year period commencing on the date hereofof-sale restrictions under Rule 144, the Company proposes or is required shall propose to file with the Commission a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock under the Securities Act (other than on Form Forms S-4 or Form S-8, S-8 or any successor to such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereofforms), whether or not for its own account, the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to Seaside and include in the securities to be registered by such registration statement all Warrant or any part of the Shares that the Holder indicates in such notice Seaside requests to be registered; provided, however, that the Holder desires Company shall not be required to sellregister any Shares pursuant to this Section 4.13 that are eligible for resale pursuant to Rule 144 under the Securities Act without any requirement for the Company to maintain current public information and without any limitation on volume or manner of sale, subject to the following terms and conditions: provided further that, (ai) if such the registration statement is for a prospective an underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the managing underwriters advise the Company so requests, on that the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed inclusion of Shares requested to be registered by included in the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with registration statement would cause an adverse effect on the success of any such underwritten offering, based on market conditions or otherwise (an “Adverse Effect”), then the Company shall only be required to include in such offering registration statement, to the extent of the amount of securities that number the managing underwriters advise may be sold without causing such Adverse Effect, (a) first, the securities of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, Company and (b) if second, the number shares, including the Shares, of all shareholders, on a pro rata basis, requesting registration and whose shares the Company is able obligated by contract to register include in the registration statement, (ii) if the registration statement is limited due for the resale of shares sold in a private placement, and if the placement agent advises the Company that the inclusion of Shares requested to Rule 415 be included in the registration statement would cause an adverse effect on the success of any such offering, based on market conditions or other SEC shelf registration rulesotherwise (an “Adverse Effect”), then the Company shall only be required to register include in such registration statement, to the Warrant Shares extent of the Holder elects amount of securities that the placement agent advises may be sold without causing such Adverse Effect, (a) first, the securities sold in such private placement and (b) second, the shares, including the Shares, of all shareholders, on a pro rata basis, requesting registration and whose shares the Company is obligated by contract to include on a pari passu basis with in the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holderstatement. The Company shall have exclusive control over the preparation and filing of any use best efforts to cause such registration statement proposed to be filed under this Section 5 become effective as well soon as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockpracticable.
Appears in 1 contract
Piggyback Registration Rights. If, The Company agrees as follows:
(a) If the Company shall determine to register any shares of its Common Stock under the Act at any time during and in connection therewith the three-year period commencing on Company may lawfully register any of the date hereofShares (other than pursuant to a registration statement excluded from the definition of a Registration Statement in Section 1), the Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall will promptly give at least 20 days prior written notice thereof to the Holder of its intention to do soHolder. Upon the written request by of the Holder within 10 30 days after receipt of any such noticenotice from the Company, the Company shall use its commercially reasonable efforts to include in will, except as herein provided, cause all of the securities to be registered by such registration statement all Warrant Shares that which the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares has requested to be registered by to be included in such Registration Statement, all to the Holder as extent requisite to permit the underwriters believe will not jeopardize sale or other disposition of the success of such offering, Shares. However nothing herein shall prevent the Company from at any time abandoning or delaying any registration.
(b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than If any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably shall be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, an underwritten public offering in whole or in part, without the prior written consent Company may require that the Shares requested for inclusion hereunder be included in the underwriting on the same terms and conditions as the securities otherwise being sold through the underwriters. If and in the event that the managing underwriter of such public offering shall be of the opinion that inclusion of all of the Shares would adversely affect the marketing of the securities to be sold by the Company therein, then the number of Shares otherwise to be included in the underwritten public offering may be reduced on a pro rata basis with the shares proposed to be included in such offering by any other selling shareholder (exclusive of the Company. Notwithstanding anything ).
(c) The Holder hereof may not exercise the rights granted in this Section to effect the registration of the Shares under the Act prior to the first anniversary hereof.
(d) Anything herein to the contrary set forth hereinnotwithstanding, the Holder hereby expressly agrees and acknowledges that any Company shall not be obligated to provide the foregoing so-called “piggyback” registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockon more than two occasions.
Appears in 1 contract
Samples: Warrant Agreement (Boston Restaurant Associates Inc)
Piggyback Registration Rights. IfWhenever the Company proposes to --------- ------------ ------ register any of its Common Stock under the Act for a public offering for cash, at any time during whether as a primary or secondary offering (or pursuant to registration rights granted to holders of other securities of the three-year period commencing on the date hereofCompany), other than a registration relating solely to employee benefit plans, or a registration relating solely to a SEC Rule 145 transaction, the Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8shall, or each such other forms as time, give the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior Stockholders written notice to the Holder of its intention intent to do so. Upon any Stockholder's written request by the Holder given within 10 15 days after receipt the giving of any such notice, the Company shall use its commercially reasonable best efforts to include cause to be included in such registration all of the Shares held by such Stockholder, to the extent requested to be registered; provided (i) at least ten percent (10%) of the Shares held by such Stockholder are included in requests which are given within 15 days of such notice by such Stockholder pursuant to this Agreement, and (ii) such Stockholder agrees to sell Shares in the securities to be registered by such registration statement all Warrant Shares that same manner and on the Holder indicates in such notice that the Holder desires to sell, subject to the following same terms and conditions: (a) if such conditions as the other Common Stock which the Company proposes to register. If the registration statement of which the Company gives notice is for a prospective underwritten offeringregistered public offering involving an underwriting, the Holder Company shall agree so advise the Stockholders as a part of the written notice given pursuant to this Section 3. In such event, the right of the Stockholders to registration pursuant to this Section 3 shall be conditioned upon the Stockholders' participation in such underwriting and the inclusion of the Stockholders' Shares in the underwriting to the extent provided herein. In such event, the selling Stockholders shall (itogether with the Company, directors and officers and the other shareholders distributing their securities through such underwriting) enter into an underwriting agreement, if required, agreement in customary form and reasonably acceptable to the selling Stockholders in form and content with the underwriter or underwriters selected for underwriting by the Company, Company and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation acceptable to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockselling Stockholders.
Appears in 1 contract
Samples: Registration Rights Agreement (First International Bancorp Inc)
Piggyback Registration Rights. If(i) Each Purchaser (together with any permitted transferee of such Purchaser, a “Holder”) is hereby granted the right to “piggyback” the Shares and Warrant Shares (such shares being referred to herein as “Registrable Securities”) on any registration statement filed by the Company, within two (2) years of the Closing Date, to register equity securities (or other Company securities convertible, exercisable or exchangeable for Company equity securities) issued by the Company (the “Registration Statement”), so long as the registration form to be used is suitable for the registration of the Registrable Securities (a “Piggyback Registration”) (it being understood that the Form S-8 and Form S-4, or any successor forms, may not be used for such purposes), all at the Company’s cost and expense (except commissions or discounts and fees of any time during of the three-year period commencing Holder’s own professionals, if any; it being understood that the Company shall not be obligated to pay the fees and expenses of Holder’s counsel); provided, however, that this paragraph 4.10(a)(i) shall not apply to any Registrable Securities if such Registrable Securities may then be sold under Rule 144 (assuming the Holder’s compliance with the provisions of the Rule) with the result that the sold securities are freely tradable without restriction and the Company delivers an opinion to that effect to the transfer agent; and provided, further, that if the offering with respect to which a Registration Statement is filed is an underwritten primary or secondary offering of the Company’s securities and the managing underwriter advises the Company in writing that in its opinion the number of securities requested to be included in such registration exceeds the number that can be sold in such offering without adversely affecting such underwriter’s ability to effect an orderly distribution of such securities or otherwise adversely effecting such offering (including, without limitation, causing a diminution in the offering price of the Company’s securities) the Company will include in such Registration Statement: (1) first, the securities being sold for the account of the Company; (2) second, the number of securities with respect to which the Company has granted rights to participate in such registration (including the Registrable Securities) that, in the opinion of such underwriter, can be sold pro rata among the respective holders of such securities on the basis of the amount of such securities then owned by each such Holder. The Company shall give each Holder of Registrable Securities at least fifteen (15) days written notice of the intended filing date hereofof any Registration Statement, the Company proposes or is required to file other than a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than filed on Form S-4 or Form S-8, or such other forms as the U.S. Securities any successor forms, and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior written notice to the each Holder of its intention to do so. Upon written request by the Holder within 10 Registrable Securities shall have seven (7) days after receipt of such noticenotice to notify the Company of its intent to include the Registrable Securities in the Registration Statement.
(ii) If, at any time after giving written notice of its intention to register any securities and prior to the effective date of the Registration Statement filed in connection with such registration, the Company shall use its commercially reasonable efforts determine for any reason not to include in the securities register or to be registered by such delay registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offeringsecurities, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success may, at its election, give written notice of such offeringdetermination to all Holders of the Registrable Securities and (1) in the case of a determination not to register, (b) if the number shall be relieved of shares the Company is able its obligation to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred Registrable Securities in connection with the registration contemplated hereby, including without limitation such abandoned registration and filing fees, printing expenses, and fees and expenses (2) in the case of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating a determination to the Holder’s registered securities included in any delay such registration hereunder, and all fees and expenses for counsel to the Holderof its securities, shall be borne and paid by permitted to delay the Holder. The registration rights and of such Registrable Securities for the same period as the delay in registering such other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockCompany securities.
Appears in 1 contract
Piggyback Registration Rights. If, If at any time during after the three-year period commencing on the date hereofEffective Date, the Company proposes or is required shall determine to prepare and file with the Securities and Exchange Commission a registration statement registering relating to an offering for its own account or the account of others of any shares of Common Stock or securities convertible into or exchangeable for Common Stock (its equity securities, other than on Form S-4 or Form S-8S-8 (each as promulgated under the Securities Act), or such their then equivalents, relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof)employee benefit plans, whether or not for its own account, then the Company shall give at least 20 days prior send a written notice of such determination to the Holder of its intention to do so. Upon written request by the Holder Optionee and, if within 10 ten calendar days after receipt the date of delivery of such notice, the Optionee shall so request in writing, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant or any part of the Option Shares as the Optionee requests to be registered; provided, however, that the Company shall not be required to register any Option Shares that are eligible for resale pursuant to Rule 144 promulgated under the Holder indicates in such notice Securities Act or that the Holder desires to sellare subject of a then effective registration statement; provided, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securitiesfurther, if the offering is an underwritten offering and was initiated by the Company so requestsor at the request of a shareholder, on and if the same basis and upon managing underwriters advise the same terms as Company that the other securities covered by such registration statement, other than securities proposed inclusion of Option Shares requested to be registered by included in the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with registration statement would cause an adverse effect on the success of any such underwritten offering, based on market conditions or otherwise (an “Adverse Effect"), then the Company shall only be required to include in such offering registration statement, to the extent of the amount of securities that number the managing underwriters advise may be sold without causing such Adverse Effect, (a) first, the securities of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, Company and (b) second, the shares, including the Option Shares, of all shareholders, provided further that the Company may remove any or all of such Option Shares if it determines such removal is necessary or appropriate to ensure such registration statement is declared effective by the Securities and Exchange Commission as a result of comments received from the staff of the Securities and Exchange Commission (including, without limitation, if the number Company receives any comments from the staff of shares the Company is able to register is limited due Securities and Exchange Commission relating to Rule 415 or other SEC shelf registration rules, under the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreementsSecurities Act), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.
Appears in 1 contract
Piggyback Registration Rights. If, at any time during the three-year period commencing on the date hereof, If the Company proposes or is required to ----------------------------- file a registration statement registering under the Securities Act with respect to an offering for its own account of any class of its equity securities (other than a registration statement on Form S-8 (or any successor form) or any other registration statement relating solely to director and/or employee benefit plans or filed in connection with an exchange offer, a transaction to which Rule 145 (or any successor rule) under the Securities Act applies or an offering of securities solely to the Company's existing stockholders), then the Company shall in each case give written notice of such proposed filing to the Purchaser as soon as practicable before the anticipated filing date, and such notice shall offer the Purchaser the opportunity to register such number of shares of Common Stock or securities convertible into or exchangeable for purchased hereunder and such number of shares of Common Stock (other than on Form S-4 or Form S-8which have vested pursuant to the Restricted Stock Agreement, or such other forms in each case as the U.S. Securities and Exchange Commission Purchaser may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, request; provided that the Company shall give at least 20 days prior written not be required to deliver such -------- notice to the Holder Purchaser at the time such notice is to be delivered if he is able to transfer, pursuant to Rule 144 under the Securities Act, all the shares of its intention Common Stock owned by him that could otherwise be included in the Company's registered offering. If the Purchaser desires to do so. Upon written request by have his shares included in such registration statement, he shall so advise the Holder Company in writing within 10 five business days after receipt the date of such the Company's notice, setting forth the amount of his shares for which registration is requested. If the Company's offering is to be an underwritten offering, the Company shall use its commercially reasonable efforts to include cause the managing underwriter or underwriters of a proposed underwritten offering to permit the Purchaser's shares to be included in the registration for such offering to include such securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that offering on the Holder desires to sell, subject to the following same terms and conditionsconditions as any similar securities of the Company included therein, provided that: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to -------- (i) enter into if the registration of which the Company gives notice involves an underwriting, the right of the purchaser to registration pursuant to this Section shall, unless the Company otherwise agrees, to be conditioned upon the Purchaser's participation as a seller in such underwriting and execution of an underwriting agreement, if required, in customary form agreement with the managing underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.and
Appears in 1 contract
Piggyback Registration Rights. If(a) Whenever the Company proposes to register any of its securities under the Securities Act, at either pursuant to an underwritten primary registration on behalf of the Company or pursuant to an underwritten secondary registration on behalf of a holder or holders of the Company's securities (other than on Form S-0, Xxxx X-0 or any time during successor form) and the three-year period commencing on registration form to be used may be used for the date hereofregistration of any Warrant Shares (a "Piggyback Registration"), the Company proposes or is required will give prompt written notice to file each holder of Warrant Shares of its intention to effect such a registration statement registering and will include in such registration all Warrant Shares, with respect to which the Company has received written requests for inclusion within ten (10) days after delivery of the Company's notice to each holder of Warrant Shares.
(b) If the managing underwriter(s) advise the Company in writing that in their opinion, the number of Warrant Shares requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability or pricing thereof, the Company will include in such registration up to an aggregate amount determined advisable by such underwriter(s): (i) first, any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, that the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and register; (ii) sell the Holder’s securitiessecond, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders any shares of the Preferred Common Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as holder(s) of Common Stock pursuant to which the underwriters believe will not jeopardize Registration Statement is being filed and to which the success holders of such offering, Warrant Shares hereunder are receiving Piggyback Registration; and (biii) if pro rata among the holders of Warrant Shares on the basis of the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed which are requested to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.
Appears in 1 contract
Samples: Series a Preferred Stock Purchase Agreement (Plangraphics Inc)
Piggyback Registration Rights. (a) If, at any time during after the three-year period commencing on the date hereofMandatory Registration Termination Date, the Company proposes to register any of its Common Stock under the Securities Act, whether as a result of a primary or secondary offering of Common Stock or pursuant to registration rights granted to holders of other securities of the Company (but excluding in all cases any registrations to be effected on Forms S-4 or S-8 or other applicable successor forms), the Company shall, each such time, give to the Investors holding Registrable Shares written notice of its intent to do so. Upon the written request of any such Investor given within 20 days after the giving of any such notice by the Company, the Company shall use reasonable efforts to cause to be included in such registration the Registrable Shares of such selling Investor, to the extent requested to be registered; provided that (1) the number of Registrable Shares proposed to be sold by such selling Investor is required equal to file a at least twenty-five percent (25%) of the total number of Registrable Shares then held by such participating selling Investor, (ii) such selling Investor agrees to sell those of its Registrable Shares to be included in such registration statement registering in the same manner and on the same terms and conditions as the other shares of Common Stock which the Company proposes to register and (iii) if the registration is to include shares of Common Stock to be sold for the account of the Company or any party exercising demand registration rights pursuant to any other agreement with the Company, the proposed managing underwriter does not advise the Company that in its opinion the inclusion of such selling Investor's Registrable Shares (without any reduction in the number of shares to be sold for the account of the Company or such party exercising demand registration rights) is likely to affect materially and adversely the success of the offering or the price that would be received for any shares of Common Stock or securities convertible into or exchangeable for Common Stock offered, in which case the rights of such selling Investor shall be as provided in Section 4(b) hereof.
(other than on Form S-4 or Form S-8, or such other forms as b) If a registration pursuant to Section 4(a) hereof involves an underwritten offering and the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, managing underwriter shall advise the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if requiredwriting that, in customary form with the underwriter or underwriters selected by the Companyits opinion, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares of Common Stock requested by the Holder Investors to be registered included in such offering exceeds the amount of shares which the underwriters reasonably believe registration is compatible with likely to affect materially and adversely the success of the offering or the price that would be received for any shares of Common Stock offered in such underwritten offering, then, notwithstanding anything in Section 4(a) to the contrary, the Company shall only be required to include in such offering that registration, to the extent of the number of shares requested to of Common Stock which the Company is so advised can be registered by the Holder as the underwriters believe will not jeopardize the success of sold in such offering, (bi) if first, the number of shares of Common Stock proposed to be included in such registration for the account of the Company is able and/or any stockholders of the Company (other than the Investors) that have exercised demand registration rights, in accordance with the priorities, if any, then existing among the Company and/or such stockholders of the Company with registration rights (other than the Investors), and (ii) second, the shares of Common Stock requested to register is limited due be included in such registration by all other stockholders of the Company who have piggyback registration rights (including, without limitation, the Investors), pro rata among such other stockholders (including, without limitation, the Investors) on the basis of the number of shares of Common Stock that each of them requested to Rule 415 or other SEC shelf registration rulesbe included in such registration.
(c) In connection with any offering involving an underwriting of shares under this Section 4, the Company shall only not be required to register the Warrant Shares the Holder elects under Section 4 hereof or otherwise to include on a pari passu basis with the other shares being registered, other than Registrable Shares of any shares proposed Investor therein unless such Investor accepts and agrees to be registered by the holders terms of the Preferred Stock; underwriting, which shall be reasonable and (c) customary, as agreed upon between the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested underwriters selected by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.
Appears in 1 contract
Piggyback Registration Rights. If, at any Each time during the three-year period commencing on the date hereof, the Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder Corporation elects to include on a pari passu basis proceed with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of a Prospectus or Registration Statement under any registration statement Securities Laws in connection with a proposed Distribution of any of its securities, whether by the Corporation or any of its security holders, the Corporation shall give written notice thereof to the Investor as soon as practicable. In such event, the Investor shall be entitled, by notice in writing given to the Corporation within ten (10) days (except in the case of a “bought deal” in which case the Investor shall have only twenty-four (24) hours) after the receipt of any such notice by the Investor, to require that the Corporation cause any or all of the Registrable Securities held by the Investor (the “Piggyback Registrable Securities”) to be filed under this Section 5 included in such Prospectus or Registration Statement (such qualification being hereinafter referred to as well as any amendments and supplements thereto a “Piggyback Registration”). Notwithstanding the foregoing:
(a) in the event the lead underwriter or lead agent for the offering advises the Corporation and the withdrawal Investor that in its good faith opinion, the inclusion of such Registrable Securities may materially and adversely affect the price or revocation thereof. success of the offering, the Corporation shall include in such Registration, in the following priority: (i) first, such number of securities the Corporation proposes to sell; (ii) second, a number of Piggyback Registrable Securities requested by the Investor to be included in such Registration to the extent that such lead underwriter or lead agent reasonably believes such securities may be included in the offering without materially and adversely affecting the price or success of the offering; and (iii) third, such number of other securities requested by any other shareholder of the Corporation to be included in such Registration to the extent that such lead underwriter or lead agent reasonably believes such securities may be included in the offering without materially and adversely affecting the price or success of the offering.
(b) the Corporation may at any time, and without the consent of the Investor, abandon the proposed offering in which the Investor has requested to participate;
(c) The Company’s obligations Investor shall have the right to withdraw its request for inclusion of its Piggyback Registrable Securities in any Prospectus or Registration Statement pursuant to this Section 5 are subject 4.2 without incurring any liability to the Holder’s cooperation Corporation or any other Person by giving written notice to the Corporation of its request to withdraw; provided, however, that:
(i) such request must be made in writing five (5) Business Days prior to the execution of the underwriting agreement (or such other similar agreement) with respect to any such proposed registrationoffering; and
(ii) such withdrawal will be irrevocable and, including but not limited to the provision of after making such information as may reasonably be requested by the Companywithdrawal, the underwriter(s) or Investor will no longer have any other authorized parties and right to include its Piggyback Registrable Securities in the execution and delivery of offering pertaining to which such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockwithdrawal was made.
Appears in 1 contract
Samples: Investor Rights Agreement (International Tower Hill Mines LTD)
Piggyback Registration Rights. If(a) The parties hereby agree that, in addition to the registration rights currently set forth in the Registration Rights Agreement, and subject to the terms and conditions thereof, each Buyer (together with any permitted transferee of such Buyer's Note, as amended, a "Holder") is hereby granted the right to "piggyback" the Unit Shares and Unit Warrant Shares issuable and/or issued upon exercise of the Unit Warrants, as amended (such shares being referred to herein as "Registrable Securities"), on any registration statement filed by the Company to register the equity securities (or other Company securities convertible, exercisable or exchangeable for Company equity securities) issued by the Company in connection with a Qualified Offering (the "Registration Statement"), so long as the registration form to be used is suitable for the registration of the Registrable Securities (a "Piggyback Registration") (it being understood that the Form S-8 and Form S-4, or any successor forms, may not be used for such purposes), all at the Company's cost and expense (except commissions or discounts and fees of any time during of the three-year period commencing Holder's own professionals, if any; it being understood that the Company shall not be obligated to pay the fees and expenses of Holder's counsel); provided, however, that this Section 4.1(a) shall not apply to any Registrable Securities if such Registrable Securities may then be sold under Rule 144 (assuming the Holder's compliance with the provisions of the Rule) with the result that the sold securities are freely tradable without restriction and the Company delivers an opinion to that effect to the transfer agent; and provided, further, that if the offering with respect to which a Registration Statement is filed is an underwritten primary or secondary offering of the Company's securities and the managing underwriter advises the Company in writing that in its opinion the number of securities requested to be included in such registration exceeds the number that can be sold in such offering without adversely affecting such underwriter's ability to effect an orderly distribution of such securities or otherwise adversely effecting such offering (including, without limitation, causing a diminution in the offering price of the Company's securities) the Company will include in such Registration Statement: (i) first, the securities being sold for the account of the Company; and (ii) second, the number of securities with respect to which the Company has granted rights to participate in such registration (including the Registrable Securities) that, in the opinion of such underwriter, can be sold pro rata among the respective holders of such securities on the basis of the amount of such securities then owned by each such Holder. The Company shall give each Holder of Registrable Securities at least fifteen (15) days written notice of the intended filing date hereofof any Registration Statement, the Company proposes or is required to file other than a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than filed on Form S-4 or Form S-8, or such other forms as the U.S. Securities any successor forms, and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior written notice to the each Holder of its intention to do so. Upon written request by the Holder within 10 Registrable Securities shall have seven (7) days after receipt of such noticenotice to notify the Company of its intent to include the Registrable Securities in the Registration Statement.
(b) If, at any time after giving written notice of its intention to register any securities and prior to the effective date of the Registration Statement filed in connection with such registration, the Company shall use its commercially reasonable efforts determine for any reason not to include in the securities register or to be registered by delay registration of such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offeringsecurities, the Holder shall agree Company may, at its election, give written notice of such determination to all Holders of the Registrable Securities and (i) enter into an underwriting agreementin the case of a determination not to register, if required, shall be relieved of its obligation to register any Registrable Securities in customary form connection with the underwriter or underwriters selected by the Company, such abandoned registration and (ii) sell in the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by case of a determination to delay such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holderits securities, shall be borne and paid by permitted to delay the Holder. The registration rights and of such Registrable Securities for the same period as the delay in registering such other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockCompany securities.
Appears in 1 contract
Samples: Second Omnibus Amendment to Transaction Documents (Cur Media, Inc.)
Piggyback Registration Rights. IfThe Company covenants and agrees with the Representative and any other Holders or subsequent Holders of the Registrable Securities that if, at any time during within the three-year period commencing on one year and ending five years after the date hereofEffective Date, the Company it proposes or is required to file a registration statement registering with respect to any shares class of Common Stock equity or securities convertible into or exchangeable for Common Stock equity-related security (other than in connection with an offering to the Company's employees or in connection with an acquisition, merger or similar transaction) under the Act in a primary registration on Form S-4 or Form S-8, or behalf of the Company and/or in a secondary registration on behalf of holders of such other forms as securities and the U.S. Securities and Exchange Commission registration form to be used may hereafter promulgate be used for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own accountRegistrable Securities, the Company will give prompt written notice (which, in the case of a registration statement or notification pursuant to the exercise of demand registration rights other than those provided in Section 10(a) of this Agreement, shall give be within ten (10) business days after the Company's receipt of notice of such exercise and, in any event, at least 20 30 days prior written notice to such filing) to the Holder Holders of Registrable Securities (regardless of whether some of the Holders have theretofore availed themselves of the right provided in Section 10(a) of this Agreement) at the addresses appearing on the records of the Company of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts file a registration statement and will offer to include in the securities to be registered by such registration statement all Warrant Shares that any of the Holder indicates in such notice that the Holder desires to sell, Registrable Securities subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to paragraphs (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securitiesof this paragraph (b), if such number of Registrable Securities with respect to which the Company so requests, on has received written requests for inclusion therein within ten (10) days after the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered giving of notice by the holders of the Preferred Stock (as defined below), and provided that if the number of shares Company. All registrations requested by the Holder pursuant to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, this paragraph (b) if the number of shares the Company is able are referred to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holderherein as "Piggyback Registrations". The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations All Piggyback Registrations pursuant to this Section 5 are subject paragraph (b) will be made solely at the Company's expense. This paragraph is not applicable to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested a registration statement filed by the Company, Company with the underwriter(s) Commission on Forms S-4 or S-8 or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stocksuccessor forms.
Appears in 1 contract
Samples: Warrant Agreement (Jaymark Inc)
Piggyback Registration Rights. If, at any time during on or before the three-year period commencing on the date hereofexpiration of this Warrant, the Company proposes or is required to file a registration statement registering for the public sale of any shares of its Common Stock or securities convertible into or exchangeable for Common Stock Equivalents under the 1933 Act (other than on registration statements (i) provided for in Section 8.2 hereof or (ii) pursuant to Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, Securities Act of 1933) the Company shall give at least 20 shall, not later than thirty (30) days prior written notice to the Holder initial filing of the registration statement, deliver notice of its intention intent to do sofile such registration statement to the Holder, setting forth the minimum and maximum proposed offering price, commissions, and discounts in connection with the offering, and other relevant information. Upon written request by the Holder within 10 Within twenty (20) days after receipt of such notice, notice of the Company shall use its commercially reasonable efforts Company's intent to include in the securities to be registered by such file a registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offeringstatement, the Holder shall agree be entitled to (i) enter into an underwriting agreement, if required, request that the Warrant Stock be included in customary form with the underwriter or underwriters selected by the Companysuch registration statement, and (ii) sell the Holder’s securities, if the Company so requests, on will use its best efforts to cause such Warrant Stock to be included in the same basis and upon the same terms as the other securities offering covered by such registration statement. In the event the Warrant Stock is included in the registration statement, other than the Holder may transfer this Warrant to an underwriter or broker for exercise by such underwriter or broker in connection with a distribution of the Warrant Stock. The managing underwriter or underwriters in an underwritten offering, or the holders of a majority in number of shares of Common Stock requesting registration, may determine that the number of securities proposed to be registered by sold in the holders of underwriting or offering exceeds the Preferred Stock (as defined below)number that can be sold without having a materially adverse effect on the price at which the securities could be sold. If it or they make such a determination in good faith, and provided that if then the Company may reduce the number of shares requested by the Holder of Common Stock to be registered included in such offering exceeds the amount registration to the highest number that the managing underwriter (or underwriters) or a majority of the holders (as the case may be) determine will not have a material adverse effect on the price of the shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if sold. If the number of shares the Company is able of Common Stock to register is be sold in a registration are limited due pursuant to Rule 415 or other SEC shelf registration rulesthis paragraph, the Company shall only be required to register will include in the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.:
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Energy Income Fund Lp)
Piggyback Registration Rights. If, at any time during the three-year period commencing on the date hereof, the Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject become ----------------------------- a party to the Holder’s cooperation with respect to any such proposed registrationPiggyback Registration Rights Agreement dated as of January 27, including but not limited to 2000, among the provision Parent and certain of such information its stockholders in the form attached hereto as may reasonably be requested by Exhibit 6.01 (the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements"Piggyback Registration Rights Agreement"), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth hereincontained herein or in the Piggyback Registration Rights Agreement: (i) any registration rights granted by the Parent to the Company pursuant to the Piggyback Registration Rights Agreement shall only be exercisable by the Company from and after the earlier to occur of (A) the date three months following the Closing and (B) the day following the closing of any public offering of Parent Common Stock; provided, however that they shall, subject to the Holder hereby expressly agrees next succeeding clause (ii), be exercisable with respect to any shelf registration statement scheduled to remain and acknowledges that does remain open more than three months after the Closing Date; and (ii) any piggyback registration rights of the Holder hereunder are subordinate to those Company shall not be exercisable in connection with any registration required in connection with or resulting or arising from the Company's issuance of its 7% Convertible Subordinated Notes Due 2005, except as set forth in the next sentence. If any of Web Hosting Organization LLC ("WHO"), Softbank Technologies Venture IV, L.P. ("SBTV"), and/or Softbank Technologies Advisors Fund, L.P. ("SBTA") register any or all of their respective shares of Parent Common Stock in parallel registration effected as a result of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued shelf registration to such holders be effected in connection with the purchase Company's issuance of 7% Convertible Subordinated Notes Due 2005 described in the Offering Memorandum, then the Company shall be entitled to exercise its piggy-back rights in respect of its "pro rata" number of Closing Shares. For purposes of this Article VI, the Company's "pro rata" number of shares means the number of Closing Shares then owned by the Company multiplied by a fraction, the numerator of which is the aggregate number of shares of Parent Common Stock then owned by WHO, SBTV and sale SBTA that are being registered as part of such parallel registration and the Preferred Stockdenominator of which is the total number of shares of Parent Common Stock then owned by WHO, SBTV and SBTA collectively.
Appears in 1 contract
Piggyback Registration Rights. If2 3 4.1 Except for the registration statement which the Company is currently planning to file with respect to a proposed underwritten offering of its common stock by Cruttenden Roth Xxxorporated, at any time if during the three-year period commencing on the date hereofJanuary 8, 1997 and ending January 8, 2002, the Company proposes or is required for any reason to file a registration statement registering register any shares of Common Stock or its securities convertible into or exchangeable for Common Stock under the Act (other than pursuant to a Registration Statement on Form Forms S-8, S-4 or Form S-8, similar or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereofsuccessor forms), whether or not for its own account, the Company it shall each such time promptly give at least 20 days prior written notice to the Holder of its intention intentions to do so. Upon , and, upon the written request by request, given within fifteen (15) days after the mailing of any such notice of the Holder within 10 days after receipt to register its Warrant Stock (which request shall specify the number of shares of the Holder's Warrant Stock requested to be registered as part of such noticeRegistration Statement), the Company shall, unless such Warrant Stock shall previously have been registered by the Company under the Act, use its commercially reasonable best efforts to include in cause all of the securities shares of Warrant Stock the Holder requested to be registered, to be registered by such registration statement all Warrant Shares that as part of the Holder indicates in such notice that the Holder desires Registration Statement proposed to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected be filed by the Company, and (ii) sell all to the Holder’s securities, if extent requisite to permit the Company so requests, on the same basis and upon the same terms as the sale or other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested disposition by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, registered shares of Warrant Stock through the Company shall only be required to include in such offering public securities markets.
4.2 In the event that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf proposed registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable4.1 hereof is, in whole or in part, without an underwritten public offering of securities, any request by the prior written consent Holder to register its Warrant Stock may specify that they are to be included in the underwriting on the same terms and conditions as like shares, if any, otherwise being sold through underwriters under such registration; provided, however, that, as to any registration pursuant to Section 4.1 hereof, if the managing underwriter(s) of such proposed public offering determine(s) and advise(s) that the inclusion of all or any part of the Company. Notwithstanding anything Warrant Stock proposed to be included in the contrary set forth hereinunderwritten public offering would interfere with or adversely affect the successful marketing of the securities originally intended to be underwritten, then the Holder hereby expressly agrees and acknowledges that any registration rights number of shares of Warrant Stock to be offered for the account of the Holder hereunder are subordinate shall be eliminated from or reduced or limited in such Registration Statement to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (togetheramount, the “Preferred Stock”) and warrants issued to if any, recommended by such holders in connection with the purchase and sale of the Preferred Stockmanaging underwriter(s).
Appears in 1 contract
Piggyback Registration Rights. If, at any time during (a) If the three-year period commencing on Corporation or a securityholder of the date hereof, the Company Corporation proposes to make a distribution or is required to file a registration statement registering any shares sale of Common Stock Shares (or any other Offered Securities) to the public by means of a prospectus or prospectus supplement under Applicable Securities Laws or U.S. securities convertible into or exchangeable for Common Stock (laws, other than on Form S-4 or Form S-8by way of a Bought Deal, or such other forms as then the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of Corporation shall promptly give the date hereof), whether or not for its own account, the Company shall give at least 20 days Investor ten (10) Business Days’ prior written notice of the filing of the prospectus or prospectus supplement with respect to the Holder of its intention to do sosuch distribution or sale, including proposed pricing. Upon the written request by of the Holder Investor given within 10 days five (5) Business Days after receipt of such noticethe notice of the proposed distribution from the Corporation, the Company Corporation shall use its commercially reasonable efforts to, in conjunction with the proposed distribution or sale, cause to include be qualified in such offering the applicable number of Qualifying Securities in accordance with the procedures set forth in Schedule A to this Agreement (a “Piggyback Registration”), provided that if the lead underwriter or underwriters of such proposed distribution or sale, acting in good faith, advise the Corporation in writing that, in its or their good faith judgment, the inclusion of the Qualifying Securities held by the Investor in the securities to proposed distribution or sale should be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: limited (a) if such registration statement is for a prospective underwritten offeringdue to market conditions, or
(b) because the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than number of securities proposed to be registered by sold or distributed is likely to have a significant adverse effect on the holders successful marketing of the Preferred Stock proposed sale or distribution (as defined belowincluding the price acceptable to the Corporation or any selling securityholder), and provided then the maximum number of securities that if the lead underwriter advises or lead underwriters advise should be sold or distributed shall be allocated as follows: (i) first, to the number of shares requested by Common Shares or other Offered Securities that the Holder person initially proposing to be registered in make such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offeringdistribution proposes to sell or distribute; (ii) second, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 Common Shares or other SEC shelf registration rulesOffered Securities that the Investor, the Company shall only be required Corporation, to register the Warrant Shares extent that the Holder elects Corporation is not the person initially proposing to include make such distribution, and any Current Participating Securityholder, to the extent that such Current Participating Securityholder is not the person initially proposing to make such distribution, proposes to sell or distribute, allocated on a pari passu pro rata basis with according to the bona fide number of securities requested for inclusion by each, or on such other shares being registered, other than any shares proposed basis as may be agreed to be registered by among such securityholders and the holders of the Preferred StockCorporation; and (ciii) third, to the Company may withdraw number of Common Shares or other Offered Securities that any such registration statement before it becomes effective Future Participating Securityholder proposes to sell or postpone distribute, allocated on a pro rata basis according to the offering bone fide number of securities contemplated requested for inclusion by each, or on such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents basis as may be reasonably requested thereby, agreed to among such securityholders and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockCorporation.
Appears in 1 contract
Samples: Subscription Agreement
Piggyback Registration Rights. If, If at any time during the three-year period commencing on or after the date hereof, the Company proposes or is required to file a registration statement registering any shares Registration Statement under the Securities Act with respect to an offering of Common Stock equity securities, or securities convertible into or other obligations exercisable or exchangeable for Common Stock (other than on Form S-4 or Form S-8for, or such other forms as convertible into, equity securities, by the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not Company for its own accountaccount or for shareholders of the Company for their account (or by the Company and by shareholders of the Company) other than a Registration Statement (A) filed in connection with any employee stock option or other benefit plan, (B) for an exchange offer or offering of securities solely to the Company’s existing shareholders, (C) for an offering of debt that is convertible into equity securities of the Company or (D) for a dividend reinvestment plan, then the Company shall (E) give at least 20 days prior written notice of such proposed filing to the Holder Holders of its intention Registrable Securities as soon as practicable but in no event less than ten (10) business days before the anticipated filing date, which notice shall describe the amount and type of securities to do so. Upon written be included in such offering, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and (F) offer to the Holders of Registrable Securities in such notice the opportunity to register the sale of such number of shares of Registrable Securities as such Holders may request by the Holder in writing within 10 days after ten (10) Business Days following receipt of such notice, the . The Company shall cause such Registrable Securities to be included in such registration and shall use its commercially reasonable efforts to include in cause the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the managing underwriter or underwriters selected by of a proposed underwritten offering to permit the Company, and (ii) sell the Holder’s securities, if the Company so requests, Registrable Securities requested to be included in a piggy-back registration to be included on the same basis terms and upon the same terms conditions as the other any similar securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), Company and provided that if to permit the number sale or other disposition of shares requested by the Holder to be registered such Registrable Securities in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible accordance with the success intended method(s) of such underwritten offering, the distribution thereof. Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 except as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth provided herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cord Blood America, Inc.)
Piggyback Registration Rights. If, at any time during the three-year period commencing on the date hereof, 2.1 If the Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as under the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not Act with respect to an offering for its own account, or the account of another stockholder, of any class of its equity securities (other than a registration statement on Form S-8 (or any successor form) or any other registration statement relating solely to employee benefit plans or filed in connection with an exchange offer, a transaction to which Rule 145 (or any successor provision) under the Securities Act applies or an offering of securities solely to the Company's existing stockholders), then the Company shall in each case give at least 20 days prior written notice of such proposed filing to the Holder Purchaser as soon as practicable (but no later than 20 business days) before the anticipated filing date, and such notice shall offer each Purchaser the opportunity to register such number of its intention shares of Conversion Shares and Warrant Shares (together the "Registrable Shares") as such Purchaser may request. Each Purchaser desiring to do so. Upon written request by have Registrable Shares" included in such registration statement shall so advise the Holder Company in writing within 10 business days after receipt the date on which the Company's notice is so given, setting forth the number of such noticeshares of Registrable Shares for which registration is requested. If the Company's offering is to be an underwritten offering, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sellshall, subject to the following further provisions of this Agreement, use its reasonable best efforts to cause the managing underwriter or underwriters to permit the Purchasers of the Registrable Shares requested to be included in the registration for such offering to include such Registrable Shares in such offering on the same terms and conditions: (a) if conditions as any similar securities of the Company included therein. The right of each Purchaser to registration pursuant to this Section 4 in connection with an underwritten offering by the Company shall, unless the Company otherwise assents, be conditioned upon such registration statement is for Purchaser's participation as a prospective seller in such underwritten offering, the Holder shall agree to (i) enter into offering and its execution of an underwriting agreement, if required, in customary form agreement with the managing underwriter or underwriters selected by the Company, and (ii) sell . Notwithstanding the Holder’s securitiesforegoing, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders managing underwriter or underwriters of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds deliver a written opinion to the amount Company that either because of shares which (a) the underwriters reasonably believe is compatible with kind of securities that the success of such underwritten offeringCompany, the Company shall only be required Purchasers and any other persons or entities intend to include in such offering or (b) the size of the offering that number the Company, the Purchasers and any other persons or entities intend to make, the success of shares the offering would be materially and adversely affected by inclusion of the Registrable Shares requested to be registered by included, then (i) in the Holder as event that the underwriters believe will not jeopardize size of the success offering is the basis of such offeringmanaging underwriter's opinion, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant of Registrable Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by and offered for the holders accounts of Purchasers shall be reduced pro rata on the basis of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering number of securities contemplated requested by such registration statement without any obligation Purchasers to be registered and offered to the Holder or any other holder. The Company shall have exclusive control over extent necessary to reduce the preparation and filing total amount of any registration statement proposed securities to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject included in such offering to the Holder’s cooperation with respect amount recommended by such managing underwriter or underwriters (provided that if securities are being registered and offered for the account of other persons or entities in addition to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, such reduction shall not be proportionally greater than any similar reductions imposed on such other persons or entities) and (ii) in the underwriter(s) or any other authorized parties and event that the execution and delivery combination of securities to be offered is the basis of such agreements managing underwriters opinion, (including indemnification and contribution agreements), instruments and documents as may x) the Registrable Shares to be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred included in connection with the registration contemplated hereby, including without limitation such registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, offering shall be borne and paid by the Holder. The registration rights and other rights granted reduced as described in this Section 5 are not assignableclause (i) above or (y) if such actions would, in whole or in partthe reasonable judgment of the managing underwriter, be insufficient to substantially eliminate the adverse effect that inclusion of the Registrable Shares requested to be included would have on such offering, such Registrable Shares will be excluded entirely from such registration and offering. Any Registrable Shares excluded from an underwriting shall, if applicable, be withdrawn from registration and shall not, without the prior written consent of the Company. Notwithstanding anything , be transferred in a public distribution prior to the contrary set forth herein, earlier of ninety (90) days (or such other shorter period of time as the Holder hereby expressly agrees and acknowledges that any registration rights managing underwriter may require) after the effective date of the Holder hereunder registration statement or ninety (90) days after the date the Purchasers of such Registrable Shares are subordinate to those notified of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockexclusion.
Appears in 1 contract
Samples: Piggyback Registration Rights Agreement (Gottaplay Interactive, Inc.)
Piggyback Registration Rights. If, (a) If at any time during the three-year period commencing on the date hereof, the Company proposes or is required to file a any registration statement registering (a “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), with respect to any shares offering of Common Stock equity securities, or securities convertible into or other obligations exercisable or exchangeable for, or convertible into, equity securities, by the Company for Common Stock its own account or for shareholders of the Company for their account (or by the Company and by shareholders of the Company), other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan on Form S-4 or Form S-8, (ii) for a dividend reinvestment plan or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities (iii) in transactions for which Form S-4 connection with a merger or Form S-8 may be used as of the date hereof)acquisition, whether or not for its own account, then the Company shall (x) give at least 20 days prior written notice of such proposed filing to the Holder as soon as practicable but in no event less than ten (10) days before the anticipated filing date of its intention the Registration Statement, which notice shall describe the amount and type of securities to do so. Upon written request by be included in such Registration Statement, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and (y) offer to the Holder in such notice the opportunity to register the sale of such number of Warrant Shares (the “Registrable Securities”) as the Holder may request in writing within 10 three (3) days after following receipt of such notice, notice (a “Piggy-Back Registration”). The Company shall cause such Registrable Securities to be included in such registration and shall cause the managing underwriter or underwriters of a proposed underwritten offering to permit the Registrable Securities requested to be included in a Piggy-Back Registration on the same terms and conditions as any similar securities of the Company and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. The Holder proposing to distribute its securities through a Piggy-Back Registration that involves an underwriter or underwriters shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, agreement in customary form with the underwriter or underwriters selected for such Piggy-Back Registration.
(b) The Holder may elect to withdraw its request for inclusion of Registrable Securities in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness of the Registration Statement. The Company (whether on its own determination or as the result of a withdrawal by persons making a demand pursuant to written contractual obligations) may withdraw a Registration Statement at any time prior to the effectiveness of such Registration Statement. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the Holder in connection with such Piggy-Back Registration as provided in Section 11(e) below.
(c) The Company shall notify the Holder at any time when a prospectus relating to the Holder’s Registrable Securities is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. At the request of the Holder, the Company shall also prepare, file and furnish to the Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of the Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. The Holder shall not to offer or sell any Registrable Securities covered by the Registration Statement after receipt of such notification until the receipt of such supplement or amendment.
(d) The Company may request that the Holder furnish the Company such information with respect to the Holder and its proposed distribution of the Registrable Securities pursuant to the Registration Statement as the Company may from time to time reasonably request in writing or as shall be required by law or by the Securities and Exchange Commission (the “SEC”) in connection therewith, and the Holder shall furnish the Company with such information.
(e) All fees and expenses incident to the performance of or compliance with this Section 11 by the Company shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses of the Company’s counsel and independent registered public accountants) (A) with respect to filings made with the SEC, (B) with respect to filings required to be made with any trading market on which the Common Shares are then listed for trading, (C) in compliance with applicable state securities or Blue Sky laws reasonably agreed to by the Company in writing (including, without limitation, fees and disbursements of counsel for the Company in connection with Blue Sky qualifications or exemptions of the Registrable Securities) and (D) with respect to any filing that may be required to be made by any broker through which a holder of Registrable Securities intends to make sales of Registrable Securities with the FINRA, (ii) printing expenses, (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, and (iiv) sell the Holder’s securitiesSecurities Act liability insurance, if the Company so requestsdesires such insurance, on the same basis (vi) fees and upon the same terms as the expenses of all other securities covered by such registration statement, other than securities proposed to be registered persons or entities retained by the holders Company in connection with the consummation of the Preferred Stock transactions contemplated by this Section 11 and (as defined below), vii) reasonable fees and provided that if disbursements of a single special counsel for the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offeringHolder. In addition, the Company shall only be required to include in such offering that number responsible for all of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable its internal expenses incurred in connection with the registration consummation of the transactions contemplated herebyby this Section 11 (including, including without limitation registration limitation, all salaries and filing feesexpenses of its officers and employees performing legal or accounting duties), printing expenses, the expense of any annual audit and the fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders incurred in connection with the purchase listing of the Registrable Securities on any securities exchange as required hereunder. In no event shall the Company be responsible for any broker or similar commissions of the Holder.
(f) The Company and its successors and assigns shall indemnify and hold harmless the Holder, the officers, directors, members, partners, agents and employees (and any other individuals or entities with a functionally equivalent role of a person holding such titles, notwithstanding a lack of such title or any other title) of each of the Holder, each individual or entity who controls the Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, members, stockholders, partners, agents and employees (and any other individuals or entities with a functionally equivalent role of a person holding such titles, notwithstanding a lack of such title or any other title) of each such controlling individual or entity (each, an “Indemnified Party”), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out of or relating to (i) any untrue or alleged untrue statement of a material fact contained in a Registration Statement, any related prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any such prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (ii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder, in connection with the performance of its obligations under this Section 11, except to the extent, but only to the extent, that such untrue statements or omissions are based upon information regarding the Holder furnished to the Company by the Holder for use therein. The Company shall notify the Holder promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 11 of which the Company is aware.
(g) If the indemnification under Section 11(f) is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then the Company shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Company and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the Company and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, the Company or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in Section 11(f) was available to such party in accordance with its terms. It is agreed that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentence. Notwithstanding the provisions of this Section 11(g), the Holder shall not be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such party from the sale of all Registrable Securities pursuant to such Registration Statement or related prospectus exceeds the Preferred Stockamount of any damages that the Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
Appears in 1 contract
Piggyback Registration Rights. (i) If, at any time during the three-year period commencing on after the date hereofof this Subscription Agreement and expiring five (5) years thereafter, the Company proposes or is required to file a registration statement registering any shares or statements under the Securities Act for the public sale of the Company's Class A Common Stock or securities convertible into or exchangeable Stock, no par value (the "Common Stock"), for Common Stock cash (other than on in connection with a merger or pursuant to Form S-4 X-0, Xxxx X-0 or Form S-8comparable registration statement) it will give written notice, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 thirty (30) days prior written notice to the Holder filing of each such registration statement, to the undersigned of its intention to do so. Upon written request by If the Holder undersigned notifies the Company in writing within 10 ten (10) business days after receipt of any such noticenotice of its desire to include the shares of the Common Stock, which may be issued upon conversion of the Shares (the "Common Shares") in such proposed registration statement, the Company shall use its commercially reasonable efforts afford the undersigned the opportunity to include have the Common Shares registered under such registration statement; provided, however, that in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective case of an underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on notifies the same basis and upon undersigned in writing that the same terms as managing underwriter of such offering has notified the other securities covered by such Company that the inclusion in the registration statement, other than securities proposed to be registered by the holders statement of any portion of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of Common Shares would have an adverse effect on such underwritten offering, then the Company shall only managing underwriter may limit the number of Common Shares to be required to include included in such registration statement only to the extent necessary to avoid such adverse effect; provided, further, however, that in the event any shares of Common Stock issued pursuant to any of the securities issued in the Company's initial public offering that ("IPO Securities") are to be included in such underwritten offering, and the managing underwriter shall have determined to limit the number of shares Common Shares or IPO Securities to be so included, then such limitation shall be applied to The Common Shares and the IPO Securities, pro rata based on the number of Common Shares and IPO Securities requested to be registered included in such underwritten offering; and provided, further, however that in the event securities of the Company, other than IPO Securities, held by any person or entity other than the Holder as Company or the underwriters believe will not jeopardize the success of undersigned ( "Third Party Securities") are to be included in such underwritten offering, (b) if and the managing underwriter shall have determined to limit the number of shares Common Stock, IPO Securities or Third Party Securities to be so included, then such limitation shall be applied to the Company Common Shares, the IPO Securities and the Third Party Securities, based on the number of Common Shares, IPO Securities and Third Party Securities requested to be included in such underwritten offering so that the amount of Third Party Securities are reduced by a percentage which is able to register is limited due to Rule 415 or other SEC shelf registration rulestwice as great as the percentage which the Common Shares and the IPO Securities are reduced. Notwithstanding the provisions of this Section VI(a)(i), the Company shall only be required to register have the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than right at any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before time after it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations given written notice pursuant to this Section 5 are VI(a)(i) (irrespective of whether a written request for inclusion of any such securities shall have been made) to elect not to file any such proposed registration statements or to withdraw the same after the filing but prior to the effective date thereof.
(ii) Following the effective date of a registration statement filed pursuant to Section VI(a)(i), the Company shall, upon the written request of the undersigned, forthwith supply such reasonable number of copies of the registration statement, prospectus and other documents necessary or incidental to the registration as shall be reasonably requested by the undersigned to permit the undersigned to make a public distribution of the Common Shares. The Company will use its reasonable efforts to qualify the Common Shares for sale in such states as the undersigned shall reasonably request, provided that no such qualification will be required in any jurisdiction where, solely as a result thereof, the Company would be subject to general service of process or to taxation or qualification as a foreign corporation doing business in such jurisdiction. The obligations of the Holder’s cooperation Company hereunder with respect to any such proposed registration, including but not limited the Common Shares are expressly conditioned on the undersigned furnishing to the provision of Company such appropriate information concerning the undersigned and the Common Shares as the Company may reasonably request.
(iii) The Company shall bear the entire cost and expense of the registration of the Common Shares pursuant to Section VI(a)(i); provided, however, that the undersigned shall be requested solely responsible for the fees of any counsel retained by the undersigned in connection with such registration and any transfer taxes or underwriting discounts, commissions or fees applicable to the Common Shares sold by the undersigned pursuant thereto.
(iv) Neither the filing of a registration statement by the Company pursuant to this Section VI(a) nor the making of any request for prospectuses by the undersigned shall impose upon the undersigned any obligation to sell the Common Shares.
(v) The undersigned, upon receipt of notice from the Company that an event has occurred which requires a post-effective amendment to a registration statement or a supplement to a prospectus included therein, shall promptly discontinue the sale of the Common Shares until the undersigned receives a copy of a supplemented or amended prospectus from the Company, which the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding provide as soon as practicable after such notice.
(vi) Not withstanding anything else to the contrary set forth hereincontained in this Subscription Agreement, if the Holder hereby expressly agrees and acknowledges that undersigned requests to have any registration rights of the Holder hereunder Common Shares registered under the Securities Act pursuant to this Section VI(a), and if such Common Shares are subordinate to those so registered, then this Section VI(a) shall be of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockno further force or effect.
Appears in 1 contract
Piggyback Registration Rights. If(i) Until such date as the ----------------------------- Registration Statement to be filed in accordance with Section 2(a) is declared effective by the Commission, at any time during the three-year period commencing on the date hereof, if the Company proposes or is required to file a registration statement registering register any shares of its Common Stock or securities convertible into or exchangeable for Common Stock any other shares of common stock of the Company under the Securities Act (other than a registration (A) on Form S-8 or S-4 or Form S-8any successor or similar forms, (B) relating to Common Stock or such any other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration shares of securities in transactions for which Form S-4 or Form S-8 may be used as common stock of the date hereofCompany issuable upon exercise of employee or consultant share options or in connection with any employee benefit or similar plan of the Company or (C) in connection with a direct or indirect acquisition by the Company of another Person or any transaction with respect to which Rule 145 (or any successor provision) under the Securities Act applies), whether or not for sale for its own account, the Company shall it will each such time, give prompt written notice at least 20 days prior written notice to the Holder anticipated filing date of its intention the registration statement relating to do sosuch registration to the Investors, which notice shall set forth such Investors' rights under this Section 2(c) and shall offer the Investors the opportunity to include in such registration statement such number of Registrable Securities as the Investors may request. Upon the written request by the Holder of an Investor made within 10 days after the receipt of notice from the Company (which request shall specify the number of Registrable Securities intended to be disposed of by such noticeInvestors), the Company shall will use its
(ii) If a registration pursuant to this Section 2(c) involves a Public Offering and the managing underwriter thereof advises the Company that, in its commercially reasonable efforts view, the number of shares of Common Stock, if any, or other shares of Common Stock that the Company and the Investors intend to include in the securities to be registered by such registration statement all Warrant Shares exceeds the largest number of shares of Common Stock (including any other shares of Common Stock or warrants of the Company) that can be sold without having an adverse effect on such Public Offering (the Holder indicates "Maximum Offering Size"), the Company will include in such notice registration only that number of shares of Common Stock which does not exceed the Holder desires Maximum Offering Size, in the following order of priorities: (1) first, all securities the Company proposes to sellsell for its own account, subject (2) second, up to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than full number of securities proposed to be registered by for the account of the holders of securities entitled to inclusion of their securities in the Preferred Stock (as defined below)Registration Statement by reason of demand registration rights, and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering(3) third, the Company shall only be required to include in such offering that number of shares securities requested to be registered by other holders of securities entitled to participate in the Holder as the underwriters believe will not jeopardize the success of such offeringregistration, (b) if drawn from them pro-rata based on the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed each has requested to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any included in such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations Investors pursuant to this Appendix I. If as a result of the proration provisions of this Section 5 2(c)(ii), the Investors are subject not entitled to the Holder’s cooperation with respect to any include all such proposed Registrable Securities in such registration, including but not limited such Investors may elect to the provision of withdraw their request to include any Registrable Securities in such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Companyregistration. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, Company shall be borne and paid by the Holder. The registration rights and other rights granted in have no obligations under this Section 5 2(c) hereof at any time that such Registrable Securities are not assignable, in whole or in part, without the prior written consent subject of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any an effective registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockstatement.
Appears in 1 contract
Piggyback Registration Rights. IfThe Company covenants and agrees with the Representatives and any other or subsequent Warrant Holder(s) that if, at any time during within the three-year period commencing on the date hereoffirst anniversary of the Effective Date and ending at the Close of Business on the day immediately preceding the sixth anniversary of the Effective Date, it proposes to register any class of security under the Act in a primary registration on behalf of the Company or in a secondary registration on behalf of holders of such securities and the registration form to be used may be used for registration of the Shares or other securities for which the Representatives' Warrants become exercisable, the Company proposes or is required to file will give prompt written notice (which, in the case of a registration statement registering any shares pursuant to the exercise of Common Stock or securities convertible into or exchangeable for Common Stock (demand registration rights other than on Form S-4 those provided in Section 12(a) of this Agreement, shall be within 10 business days after the Company's receipt of notice of such exercise and, in any event, shall be at least 45 days prior to the effective date of such filing) to each Warrant Holder (regardless of whether the Warrant Holder shall have theretofore availed himself or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as herself of the date hereofright provided in Section 12(a), whether or not for its own account, ) at the addresses appearing on the records of the Company shall give at least 20 days prior written notice to the Holder of its intention to do soeffect a registration. Upon The Company will offer to include in such registration such number of Shares or other securities for which the Representatives' Warrants are exercisable with respect to which the Company has received written request by the Holder requests for inclusion therein within 10 days after receipt of notice from the Company; provided, that if such noticeregistration is to be underwritten, the Company shall use its commercially reasonable efforts not be required to include the Shares or other securities for which the Representatives' Warrants become exercisable in such registration to the extent the managing underwriter(s) determines in good faith that the number of Shares requested to be included in such registration exceed the number which can be sold in such offering without a material reduction in the selling price anticipated to be received for the securities to be registered by such registration statement all Warrant Shares that the Holder indicates sold in such notice offering; and provided, further, that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only not be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed securities to be registered by the holders extent such inclusion would violate or cause a breach of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing provisions of any registration statement proposed rights granted to third parties prior to the date of this Agreement (including, without limitation, the protection of the priority of certain holders relating to the limitation on the amount of securities to be filed under this Section 5 as well as any amendments included in an underwritten offering which right of protection was granted to such holders pursuant to the Amended and supplements thereto Restated Preferred Stock Purchase Agreement dated December 23, 1988 among the Company, Mitek Industries, Inc. ("Mitek"), Intech Group Inc. ("Intech"), Gateway Venture Partners, II, L.P. ("Gateway"), Zinsmeyer Trusts Partnership ("Zinsmeyer") and Missouri Venture Partnexx, X.X.; the Securities Purchaxx Xxxxxxent dated November 28, 1990 among the Company, Mitek, Intech, Gateway and Zinsmeyer; and the withdrawal or revocation thereofRegistration Rights Agreement dated March 15, 1994 xxxxx xxx Company, Intech and Intech Partners, L.P.). The Company’s obligations All registrations requested pursuant to this Section 5 (b) are subject referred to the Holder’s cooperation with respect herein as "Piggyback Registrations". This paragraph is not applicable to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested a registration statement filed by the Company, Company with the underwriter(s) Commission on Forms S-4 or S-8 or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stocksuccessor forms.
Appears in 1 contract
Samples: Warrant Agreement (Talx Corp)
Piggyback Registration Rights. IfThe Company covenants and agrees ----------------------------- with the Representative and any other or subsequent Warrant Holder(s) that if, at any time during within the three-year period commencing on the date hereoffirst anniversary of the Effective Date and ending at the Close of Business on the day immediately preceding the seventh anniversary of the Effective Date, it proposes to register any class of security under the Act in a primary registration on behalf of the Company or in a secondary registration on behalf of holders of such securities and the registration form to be used may be used for registration of the Shares or other securities for which the Warrants become exercisable, the Company proposes or is required to file will give prompt written notice (which, in the case of a registration statement registering any shares pursuant to the exercise of Common Stock or securities convertible into or exchangeable for Common Stock (demand registration rights other than on Form S-4 those provided in Section 12(a) of this Agreement, shall be within 10 business days after the Company's receipt of notice of such exercise and, in any event, shall be at least 45 days prior to such filing) to each Warrant Holder (regardless of whether the Warrant Holder shall have theretofore availed himself or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as herself of the date hereofright provided in Section 12(a), whether or not for its own account, ) at the addresses appearing on the records of the Company shall give at least 20 days prior written notice to the Holder of its intention to do soeffect a registration. Upon The Company will offer to include in such registration such number of Shares or other securities for which the Warrants are exercisable with respect to which the Company has received written request by the Holder requests for inclusion therein within 10 days after receipt of notice from the Company; provided, that if such noticeregistration is to be underwritten, the Company -------- shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only not be required to include the Shares or other securities for which the Warrants become exercisable in such offering registration to the extent the managing underwriter(s) determines in good faith that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone inclusion would materially adversely affect the offering of securities contemplated being made by such registration statement without any obligation to the Holder or any other holderregistration. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations All registrations requested pursuant to this Section 5 12(b) are subject referred to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information herein as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock."Piggyback
Appears in 1 contract
Piggyback Registration Rights. If, at any time during the three-year period commencing on the date hereof, 7.1 If the Company proposes or is required determines to file proceed with the preparation and filing with the SEC of a registration statement registering (the "Registration Statement") relating to an offering for its own account or the account of others under the 1933 Act of any shares of Common Stock or securities convertible into or exchangeable for Common Stock (its common shares, other than on Form S-4 or Form S-8S-8 (each as promulgated under the 0000 Xxx) or its then equivalents relating to equity securities issuable in connection with stock option or other employee benefit plans, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, then the Company shall give at least 20 days prior will send to the Investor written notice to the Holder of its intention to do so. Upon written request by the Holder such determination and, if within 10 thirty (30) days after receipt of such notice, the Investor will so request in writing, then the Company shall use will cause the registration under the 1933 Act of the Shares (the "Registrable Securities"); provided, however that, if at any time after giving written notice of its commercially reasonable efforts intention to register any of its common shares in an underwritten offering and prior to the effective date of the registration statement filed in connection with such underwritten offering, the managing underwriter advises the Company in writing that in its opinion the number of securities requested to be included in such registration exceeds the number that can be sold in such underwritten offering without adversely affecting such underwriter’s ability to effect an orderly distribution of such securities, then the Company may give written notice of such determination to the Investor and, thereupon will be relieved of its obligation to register the Registrable Securities in connection with such underwritten offering to the extent necessary to reduce the total number of securities included in such offering to the amount recommended by the managing underwriter. The Company will include the Investor’s Registrable Securities in any future registration prior to any other shares of stock of the Company held by any other stockholder of the Company. The Company will include in the securities to be registered by such registration statement all Warrant Shares or any part of the Registrable Securities; provided, however, that the Holder indicates Company will not be required to register any shares that are eligible for sale pursuant to Rule 144(k) of the 1933 Act.
7.2 In connection with each Registration Statement described in such notice that this section, the Holder desires to sell, subject Investor will furnish to the following terms Company in writing such information and conditionsrepresentation letters with respect to itself and the proposed distribution by it as reasonably will be necessary in order to assure compliance with federal and applicable state securities laws. The Company may require the Investor to furnish to the Company a certified statement as to the number of shares of common stock beneficially owned by the Investor and the name of the natural person thereof that has voting and dispositive control over the Registrable Securities.
7.3 All fees and expenses incidental to the performance of or compliance with the filing of the Registration Statement will be borne by the Company whether or not any Registrable Securities are sold pursuant to the Registration Statement. The fees and expenses referred to in the foregoing sentence will include, without limitation: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreementall registration and filing fees, if requiredincluding, in customary form without limitation, fees and expenses: (A) with respect to filings required to be made with the underwriter OTC Bulletin Board or underwriters selected by other exchange or quotation service on which the Companycommon stock of the Company is then listed for trading, and (B) in compliance with applicable state securities or Blue Sky laws; (ii) sell printing expenses, including, without limitation, expenses of printing certificates for Registrable Securities and of printing prospectuses, if the Holder’s securitiesprinting of prospectuses is reasonably requested by the holders of a majority of the Registrable Securities included in the Registration Statement; (iii) messenger, telephone and delivery expenses; (iv) fees and disbursements of counsel for the Company; (v) 1933 Act liability insurance, if the Company so requests, on the same basis desires such insurance; and upon the same terms as the (vi) fees and expenses of all other securities covered by such registration statement, other than securities proposed to be registered persons retained by the holders Company in connection with the filing of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offeringRegistration Statement. In addition, the Company shall only will be required to include in such offering that number responsible for all of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable its internal expenses incurred in connection with the registration contemplated herebyfiling of the Registration Statement, including including, without limitation registration limitation, all salaries and filing feesexpenses of its officers and employees performing legal or accounting duties, printing expenses, the expense of any annual audit and the fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders incurred in connection with the purchase and sale listing of the Preferred StockRegistrable Securities on any securities exchange, if applicable. In no event will the Company be responsible for any broker or similar commissions or, except to the extent provided for hereunder, any legal fees or other costs of the Investor.
7.4 The Company will, notwithstanding any termination of this Agreement, indemnify and hold harmless the Investor, its officers, directors, agents and employees, and each person who controls the Investor (within the meaning of Section 15 of the 1933 Act or Section 20 of the 0000 Xxx) and the officers, directors, agents and employees of each such controlling person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in the Registration Statement, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent, but only to the extent, that: (i) such untrue statements or omissions are based upon information regarding the Investor furnished in writing to the Company by the Investor expressly for use therein, or to the extent that such information relates to the Investor or the Investor's proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by the Investor expressly for use in the Registration Statement, or in any amendment or supplement thereto; or (ii) the use by the Investor of an outdated or defective Registration Statement.
7.5 The Investor will indemnify and hold harmless the Company, its directors, officers, agents and employees, each person who controls the Company (within the meaning of Section 15 of the 1933 Act and Section 20 of the 1934 Act), and the directors, officers, agents or employees of such controlling persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, to the extent arising out of or based upon: (i) the Investor's failure to comply with the prospectus delivery requirements of the 1933 Act; or (ii) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading: (A) to the extent, but only to the extent, that such untrue statement or omission is contained in any information so furnished by the Investor to the Company specifically for inclusion in the Registration Statement, or (B) to the extent that such untrue statements or omissions are based upon information regarding the Investor furnished in writing to the Company by the Investor expressly for use therein, or (C) to the extent that such information relates to the Investor or the Investor's proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by the Investor expressly for use in the Registration Statement or in any amendment or supplement thereto; or (iii) the use by the Investor of an outdated or defective Registration Statement.
7.6 If a claim for indemnification hereunder is unavailable to either the Company or the Investor (in each case, an "Indemnified Party or Indemnified Parties", as applicable) (by reason of public policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, will contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party will be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses will be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys' or other reasonable fees or expenses incurred by such party in connection with any proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this section was available to such party in accordance with its terms. The parties hereto agree that it would not be just and equitable if contribution pursuant to this section were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph.
Appears in 1 contract
Piggyback Registration Rights. If, (a) Whenever at any time during the three-year period commencing on the date hereofafter September 30, 1996, the Company proposes to register any of its securities under the Securities Act on Forms S-1, X-0, X-0, XX-0, XX-0 xx any successor form, it shall each time give prompt written notice to each of Ungax xxx Woodx xxx each other shareholder of the Company possessing piggyback registration rights relating to the shares of the Company's capital stock pursuant to any agreement of its intention so to do and, upon the written request of such shareholder(s) given within thirty days after the giving of any such notice (which request shall state the proposed method of distribution of such shares of Common Stock), the Company shall include in the proposed registration (the "Proposed Registration") all Registrable Shares with respect to which the Company has received a written request from such shareholder(s) for inclusion therein within thirty days after receipt of the Company's notice. Except as may otherwise be provided in this Agreement, Registrable Shares with respect to which such request for registration has been received will be registered by the Company and offered to the public pursuant to this Section 23.2 on the same terms and subject to the same conditions as are applicable to the Proposed Registration.
(b) If the managing underwriter or is required underwriters advise the Company that in its or their opinion or, in the case of a Proposed Registration not being underwritten, the Company shall reasonably determine after consultation with a reputable investment banking firm that, the number of shares proposed to file be sold in a registration statement registering any exceeds the number which can be reasonably sold in such offering, the Company will include in such registration the number of shares of Common Stock which, in the opinion of such underwriter or securities convertible into underwriters, or exchangeable for the Company, as the case may be, can be sold, as follows: (i) first, if the registration is pursuant to a demand registration right, the Registrable Shares proposed to be sold by the requesting shareholder, (ii) second, the shares of Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires proposes to sell, subject and (iii) third, on a pro rata basis, Registrable Shares requested by other persons to the following terms and conditions: (a) if be included in such registration statement is for a prospective underwritten offering, the Holder shall agree in proportion to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder each such other person to be registered included in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible registration.
(c) If, after complying with the success of procedures specified in Section 23.2(b), not all the Registrable Shares requested by the shareholders are included in such underwritten offeringregistration, the Company shall only be required will use its best efforts to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success effect a separate registration of such offeringRegistrable Shares, (b) if the number of shares and the Company is able shall use its best efforts to register is limited due cause such separate registration to Rule 415 or other SEC shelf registration rulesbecome effective not later than one hundred and twenty (120) days after the effective date of the Proposed Registration. Notwithstanding anything herein to the contrary, the Company shall only be required may, to register the Warrant Shares extent then permitted by applicable law, at any time prior to the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders effective date of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation Proposed Registration, determine in its sole discretion not to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.effect such
Appears in 1 contract
Piggyback Registration Rights. If, If at any time during after the three-year period commencing on the date hereof, IPO Date the Company proposes to register any of its Common Units or is required to file a registration statement registering any shares of Common Stock other equity securities (or other securities convertible into equity securities) of the Company under the Securities Act for sale to the public, whether for its own account or exchangeable for Common Stock the account of other security holders or both (other than a Demand Registration or a registration on Form S-4 or Form S-8, S-8 promulgated under the Securities Act (or such any successor forms thereto) or any other forms as form not available for registering the U.S. Restricted Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of sale to the date hereofpublic), whether or not for its own account, the Company shall it will give at least 20 days prior written notice (each such notice a “Piggyback Notice”) to the Holder each Member of its intention to do soso as soon as practicable prior to the filing of such registration statement with the Commission. Upon the written request by the Holder of any Member, given within 10 20 days after receipt by such Member of such noticethe Piggyback Notice, to register any of its Restricted Securities (which request shall state the number of Restricted Securities to be so registered and the intended method of disposition thereof), the Company shall will use its commercially reasonable efforts to include cause the Restricted Securities, as to which registration shall have been so requested, to be included in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected covered by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, all to the underwriter(s) extent required to permit the sale or any other authorized parties and the execution and delivery disposition by such Member of such agreements (including indemnification and contribution agreements)Restricted Securities so registered; provided, instruments and documents as may be reasonably requested thereby, and that nothing herein shall prevent the Holder’s compliance with all applicable lawsCompany from abandoning or delaying such registration at any time. The Company shall pay all reasonable expenses incurred in connection with In the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in event that any registration hereunder, and all fees and expenses for counsel referred to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable2(d) shall be, in whole or in part, without an underwritten public offering, such Restricted Securities shall be included in the prior written consent underwriting on the same terms and conditions as the shares otherwise being sold through underwriters under such registration. The number of Restricted Securities to be included in such an underwritten offering may be reduced if and to the extent that, in the good faith opinion of the Company. Notwithstanding anything managing underwriter of such offering, inclusion of all shares would adversely affect the marketing (including the offering price) of the shares to be sold; and, in the case of any such reduction, shares shall be included in such offering to the contrary set forth hereinextent so permissible on the following basis: (A) first, all shares proposed to be included by the Holder hereby expressly agrees and acknowledges that any registration rights Company for the account of the Holder hereunder are subordinate Company shall be included, (B) second, all Restricted Securities proposed to those be included by the Members shall be included (subject to pro rata reduction among the Members seeking to include Restricted Securities in such offering based on the number of such Restricted Securities held by the Members), and (C) finally, Common Units proposed to be included by the Company for the account of other security holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockCompany shall be included.
Appears in 1 contract
Samples: Registration Rights Agreement (Accuro Healthcare Solutions, Inc.)
Piggyback Registration Rights. If, at At any time during the three-year period commencing on after the date hereof, if the Company proposes or is required to determines that it will file a registration statement registering any shares under the Securities Act of Common Stock or securities convertible into or exchangeable for Common Stock 1933, as amended (the "1933 Act"), (other than a registration statement on a Form S-4 or Form S-8S-8 or filed in connection with an exchange offer, an offering of securities solely to the Company's existing stockholders or a rights offering by the Company) on any form that would also permit the registration of the vested portion of the Award, to the extent certificates are delivered therefor pursuant to Section 5(b) hereof, which such other forms vested portion shall be measured as of the U.S. date such registration statement is initially filed with the Securities and Exchange Commission may hereafter promulgate (the "Registrable Stock"), and such filing is to be on the Company's behalf and/or on behalf of selling holders of its securities for the general registration of securities in transactions its Class A Common Stock to be sold for which Form S-4 or Form S-8 may be used as cash, at such time the Company will within thirty (30) days of such determination give the Participant written notice of such determination setting forth the date hereof), whether or not for its own account, on which the Company shall give at least 20 proposes to file such registration statement, which date will be no earlier than thirty (30) days prior written notice to from the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt date of such notice, and advising the Participant of his right to have Registrable Stock included in such registration. Upon the written request of the Participant received by the Company shall no later than fifteen (15) days after the date of the Company's notice, the Company will use its commercially reasonable best efforts to include cause to be registered under the 1933 Act all of the Registrable Stock that the Participant has so requested to be registered. If, in the opinion of the managing underwriter or underwriters (or, in the case of a non-underwritten offering, in the opinion of the Company), the total amount of such securities to be registered by so registered, including such registration statement all Warrant Shares Registrable Stock, will exceed the maximum amount of the Company's securities that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to can be marketed (i) enter into an underwriting agreementat a price reasonably related to the then current market value of such securities, if requiredor (ii) without otherwise materially and adversely affecting the entire offering, then the Registrable Stock shall not be included in customary form with such registration. If the underwriter or underwriters selected Series B Preferred Stockholders of the Company restrict the registration of common shares of the Company held by other holders of common shares of the Company, and (ii) sell the Holder’s securitiesthen, if the Company in that event, they may also so requests, on restrict to the same basis and upon extent the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders rights hereunder of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockParticipant.
Appears in 1 contract
Samples: Executive Employment Agreement (Wyndham International Inc)
Piggyback Registration Rights. If, The Company agrees as follows:
(a) If the Company shall determine to register any shares of its Common Stock under the Act at any time during the three-year period commencing on the date hereof, and in connection therewith the Company proposes or is required may lawfully register any of the Shares, (other than pursuant to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 S-4. S-8 or Form S-8, any comparable form or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration filed in connection with an exchange offering of securities in transactions for which Form S-4 or Form S-8 may be used as of solely to the date hereof), whether or not for its own account, Company's existing shareholders) the Company shall will promptly give at least 20 days prior written notice thereof to the Holder of its intention to do soHolder. Upon the written request by of the Holder within 10 30 days after receipt of any such noticenotice from the Company, the Company shall use its commercially reasonable efforts to include in will, except as herein provided, cause all of the securities to be registered by such registration statement all Warrant Shares that which the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares has requested to be registered by to be included in such Registration Statement, all to the Holder as extent requisite to permit the underwriters believe will not jeopardize sale or other disposition of the success of such offering, Shares. However nothing herein shall prevent the Company from at any time abandoning or delaying any registration.
(b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than If any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably 5.2 shall be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, an underwritten public offering in whole or in part, without the prior written consent Company may require that the Shares requested for inclusion hereunder be included in the underwriting on the same terms and conditions as the securities otherwise being sold through the underwriters. If and in the event that the managing underwriter of such public offering shall be of the opinion that inclusion of all of the Shares would adversely affect the marketing of the securities to be sold by the Company therein, then the number of Shares otherwise to be included in the underwritten public offering may be reduced on a pro rata basis with the shares proposed to be included in such offering by any other selling shareholder (exclusive of the Company. Notwithstanding anything ).
(c) The Holder hereof may not exercise the rights granted in this Section 5.2 to effect the registration of the Shares under the Act prior to the conversion of the Debentures into shares of Common Stock of the Company.
(d) Anything herein to the contrary set forth hereinnotwithstanding, the Holder hereby expressly agrees and acknowledges that any Company shall not be obligated to provide the foregoing so-called "piggyback" registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockon more than two occasions.
Appears in 1 contract
Samples: Variable Rate Convertible Subordinated Debenture (Boston Restaurant Associates Inc)
Piggyback Registration Rights. If, at any time during the three-year period commencing on the date hereof, (a) Whenever the Company proposes in an underwritten offering to publicly sell or is required register for sale any of its common equity securities pursuant to file a registration statement registering any shares whether for its own account or for the account of Common Stock one or more stockholders of the Company, the Investor may participate in such underwritten offering, except for (i) offerings in connection with registrations of securities convertible into or exchangeable for Common Stock (other than of the Company on Form S-4 or Form S-8S-8 or any similar successor forms thereto, or (ii) offerings in connection with employee benefit, dividend reinvestment or similar plans (participation under such other forms circumstances is referred to as a “Piggyback Registration”); provided, that after any such offer and sale, the U.S. Securities Investor maintains adequate security pursuant to the indemnification provisions in the Stock Purchase Agreement as provided in Section 2.7.
(b) If a Piggyback Registration is initiated in connection with a registration relating to an underwritten offering on behalf of the Company, and Exchange Commission may hereafter promulgate for registration the managing underwriter advises the Company in writing that in its opinion the number of securities requested to be included in transactions for such registration exceeds the number that can be sold in such offering without having an adverse effect on such offering, including the price at which Form S-4 or Form S-8 may such securities can be used as sold, then the Company shall include in such registration the maximum number of securities that such underwriter advises can be so sold without having such effect, allocated (i) first, to the securities the Company proposes to sell, (ii) second, to the Subject Securities requested to be included therein by the Investor, and (iii) third, among other securities requested to be included in such registration by other securityholders of the date hereofCompany on such basis as such holders may agree among themselves and the Company.
(c) Subject to Sections 2.5(a)(iv) and 2.5(d), if a Piggyback Registration is initiated in connection with a registration relating to an underwritten offering on behalf of a holder of the Company’s securities (including the Investor, solely with respect to the Subject Securities) and the managing underwriter advises the Company in writing that in its opinion the number of securities requested to be included in such registration exceeds the number that can be sold in such offering without having an adverse effect on such offering, including the price at which such securities can be sold, then the Company shall include in such registration the maximum number of securities that such underwriter advises can be so sold without having such effect, allocated (i) first, to the securities requested to be included therein by the holder(s) requesting such registration and (ii) second, to other securities (including Subject Securities) requested to be included in such registration by other securityholders, the Company and the Investor.
(d) The Company shall provide six Business Days notice to the Investor prior to the launch of any such underwritten offering of common equity securities whether or not for its own accountaccount or for the account of one or more stockholders of the Company, to allow the Investor to exercise its Piggyback Registration rights under this Section 2.12; provided, that the Company may provide the Investor with less than six Business Days notice solely in the event that the Company reasonably determines in good faith, in light of the circumstances at that time, that it is reasonably necessary to conduct an offering of equity securities within fewer than six Business Days (in which case the Company shall give at least 20 days prior the Investor as much advance notice of such offering as possible). The Investor shall confirm by way of a written notice to the Holder of its intention Company that it intends to do so. Upon written request exercise such Piggyback Registration rights, to be received by the Holder within 10 days after receipt Company no later than the second Business Day prior to the launch of such notice, the Offering. In the event that the Company shall use its commercially reasonable efforts to include in the securities to be registered by conducts such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective primary underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested therebycommon equity securities, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating Investor chooses not to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth hereinexercise its Piggyback Registration rights, the Holder hereby expressly agrees and acknowledges that Investor shall not Transfer any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders Subject Securities except in connection accordance with the purchase and sale of the Preferred StockSection 2.13.
Appears in 1 contract
Piggyback Registration Rights. If, at any time during the three-year period commencing on and from time to time from and after the date hereof, hereof the Company proposes or is required to file a registration statement registering Registration Statement under the Securities Act, with respect to any shares offering of Common Stock any of its securities, whether for the Company's own account or securities convertible into or exchangeable for Common Stock the account of selling security holders (other than a Registration Statement (x) with regard to acquisitions of employee stock options, employee purchase plans or other employee benefit plans on Form S-8 or any successor form thereto or (y) on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereofany successor form thereto), whether or not for its own account, the Company shall give advise the Holders by written notice at least 20 60 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt filing of such noticeRegistration Statement and will, upon the request of any Holder, use its best efforts to cause the number of Registrable Securities then held by such Holder and referred to in such request to be included in such Registration Statement (a "Piggyback Registration"); provided, however, that in the event that the offering pursuant to such Registration Statement shall be underwritten and the managing underwriter advises the Company in writing that in its opinion the number of securities requested to be included in such registration pursuant to a Piggyback Registration exceeds the number of securities that can be sold in the offering without adversely affecting the offering price or the marketing of the Company's securities, the Company shall use its commercially reasonable efforts to may first include in the securities to be registered by such registration statement all Warrant Shares that securities the Holder indicates in such notice that the Holder desires Company proposes to sell, subject and the Holders shall accept a reduction (pro rata with any other holders of the Company's equity securities entitled to register such securities on such Registration Statement whose registration rights are not subordinate to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, rights of the Holder shall agree to (i) enter into an underwriting agreement, if required, Holders as set forth in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requeststhis Agreement), on the same basis and of the proportion that the market value (based upon the same terms as proposed offering price of such securities or the other securities covered by such registration statement, other than securities proposed to be registered by the holders mid-point of the Preferred Stock (as defined below)range of the proposed offering prices, and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success any, of such underwritten offering, securities) (the Company shall only be required to include in such offering that number "Market Value") of shares each security holder's aggregate securities requested to be registered by bears to the Holder Market Value of the aggregate amount of all equity securities (other than those to be sold for the Company's account) as the underwriters believe will not jeopardize the success of such offering, (bto which registration is sought) if in the number of shares securities to be included in such registration, which reduction may, if necessary, be total; provided, however, that as among all Holders, any such reduction shall be made pro rata among those Holders requesting the registration of their Registrable Securities based on the total number of Registrable Securities so requested by Holders to be registered notwithstanding the foregoing provisions of this Section 2.1 The Company hereby agrees that if a reduction in the total amount of securities to be included in a Piggyback Registration is able to register is limited due to Rule 415 or other SEC shelf registration rulesnecessary, the Company shall only be required to register must treat the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other Holders more favorably than any shares proposed to be registered by the holders other director, officer or controlling stockholder of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holderseeking rights under a Piggyback Registration. The Company shall have exclusive control over the preparation and filing of keep any registration statement proposed to be filed under Registration Statement contemplated by this Section 5 2.1 current for a period of nine months from the effective date of such Registration Statement or until such earlier date as well as any amendments and supplements thereto and the withdrawal or revocation thereofall of each Holder's registered Registrable Securities have been sold. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation In connection with respect to any such proposed registrationRegistration Statement, including but not limited to the provision of each Holder whose Registrable Securities are included in such information Registration Statement will execute and deliver such customary underwriting documents as may are reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents managing underwriter as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating a condition to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent inclusion of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders Holder's Registrable Securities in connection with the purchase and sale of the Preferred Stocksuch Registration Statement.
Appears in 1 contract
Piggyback Registration Rights. (a) If, subsequent to six (6) months following the date of the Initial Public Offering, the Company at any time during the three-year period commencing on the date hereof, the Company proposes or is required to file on its behalf and/or on behalf of any of its security holders (the "demanding holders") a registration statement registering under the Securities Act on any form (other than a registration statement on Form S-4 or S-8 or any successor form for securities to be offered solely in a transaction of the type referred to in Rule 145 under the Securities Act or to employees of the Company pursuant to employee benefit plans) for the general registration of securities to be sold for cash with respect to its Common Stock, it will give written notice to E*Trade at least twenty (20) days before the initial filing of such registration statement with the Securities and Exchange Commission, which notice shall set forth the intended method of disposition of the securities proposed to be registered by the Company ("Registration Notice"). The Registration Notice shall offer to include in such filing the aggregate number of shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission E*Trade may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sellrequest, subject to the following terms and conditions: (a) if such hereof. If the registration statement is for a prospective of which the Company gives notice involves an underwritten offering, the Holder E*Trade's right to participate in such offering shall agree to (i) enter be conditioned upon E*Trade's entry into an underwriting agreement, if required, agreement in customary form with the underwriter or underwriters selected for such offering by the Company, and (ii) E*Trade must sell the Holder’s securities, if the Company so requests, its shares to such underwriters on the same basis terms and upon conditions as apply to the same terms Company and/or such other sellers of Common Stock, as the other securities covered by case may be.
(b) E*Trade shall advise the Company in writing within fifteen (15) days after the date of receipt of such registration statement, other than securities proposed offer from the Company of its election to be registered by the holders of the Preferred Stock (as defined below)participate in such offering, and provided that if set forth the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares Common Stock for which the underwriters reasonably believe registration is compatible with the success of such underwritten offering, the requested. The Company shall only be required to thereupon include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if filing the number of shares of Common Stock for which registration is so requested, subject to the next sentence, and shall use its best efforts to effect registration under the Securities Act of such shares of Common Stock. If the managing underwriter of a proposed offering shall advise the Company is able to register is limited due to Rule 415 or other SEC shelf registration rulesin writing that, in its opinion, the Company shall only distribution of shares of Common Stock requested to be required to register included in the Warrant Shares the Holder elects to include on a pari passu basis registration concurrently with the other shares securities being registered, other than any shares proposed to be registered by the Company or such demanding holders would materially and adversely affect the distribution of such securities by the Preferred Stock; and Company or such demanding holders, then all selling holders (other than the Company or any demanding holder that shall have initially requested such registration pursuant to "demand registration" rights) shall reduce, on a pro rata basis, the amount of securities each intended to distribute through such offering to a level acceptable to such underwriter.
(c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth hereincontained in the provisions of this Section 4.2, the Holder hereby expressly agrees and acknowledges that Company shall have the right at any time ----------- after it shall have given Registration Notice (irrespective of whether a written request for inclusion of any Common Stock shall have been made by E*Trade) to elect not to effect the proposed "piggy-back" registration rights of or to withdraw the Holder hereunder are subordinate same after the filing but prior to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockeffective date thereof.
Appears in 1 contract
Piggyback Registration Rights. If, at any time during the three-year period commencing on the date hereof, If the Company proposes to register (including for this purpose a registration effected by the Company for shareholders other than the Holder) any of its stock or is other securities under the Act in connection with the public offering of such securities (other than a registration relating solely to the sale of securities to participants in a Company stock plan or a registration on any form which does not include substantially the same information as would be required to file be included in a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as covering the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as sale of the date hereofRegistrable Securities), whether or not for its own account, the Company shall give the Holder written notice at least 20 twenty (20) days prior written before the initial filing with the SEC of such registration statement (the "Piggyback Registration Statement"), which notice shall set forth the amount of securities the Company and other parties, if any, then contemplate including in such registration and the intended method of disposition of the securities proposed to be offered by the Company. The notice shall offer to include in such registration, subject to and on the terms and conditions hereinafter provided, such number of Registrable Securities as the Holder of its intention to do somay request. Upon written request by The Holder shall advise the Holder Company in writing within 10 twenty (20) days after receipt of such notice, notice by the Company shall use its commercially reasonable efforts to include in accordance with Section 9, setting forth the securities to be registered by amount of Registrable Securities for which registration is requested as part of such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sellPiggyback Registration Statement. The Company shall, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offeringprovisions of Section 3.4, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed cause to be registered by under the holders Act all of the Preferred Stock (as defined below), and provided Registrable Securities that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares has requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.
Appears in 1 contract
Piggyback Registration Rights. If, (a) If at any time during the three-year period commencing on the date hereof, the Company proposes or is required to file a registration statement registering any shares Registration Statement under the Securities Act with respect to an Underwritten Offering of Common Stock equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or exchangeable for Common Stock the account of stockholders of the Company (other than by Stockholders pursuant to Section 5.02(a) hereof) on a form that would permit registration of Registrable Securities, other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Stockholders, (iii) for an offering of debt that is convertible into equity securities of the Company, (iv) for a dividend reinvestment plan or (v) on Form S-4 or Form S-8S-4, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, then the Company shall give at least 20 days prior written notice of such proposed filing to all of the Holder Stockholders as soon as practicable but not less than ten (10) days before the anticipated filing date of its intention such Registration Statement, which notice shall (A) describe the amount and type of securities to do so. Upon written be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of the Stockholders the opportunity to register the sale of such number of Registrable Securities as such Stockholders may request by the Holder in writing within 10 five (5) Business days after receipt of such noticewritten notice (and in the case of an “overnight” or “bought” offering, such requests must be made by the Stockholders within one (1) Business Day after the delivery of any such notice by the Company) (such Registration a “Piggyback Registration”); provided, however, that if the Company has been advised by the managing Underwriter(s) that the inclusion of Registrable Securities for sale for the benefit of the Stockholders will have an adverse effect on the price, timing or distribution of the Common Stock in the Underwritten Offering, then (A) if no Registrable Securities can be included in the Underwritten Offering in the opinion of the managing Underwriter(s), the Company shall not be required to offer such opportunity to the Stockholders or (B) if any Registrable Securities can be included in the Underwritten Offering in the opinion of the managing Underwriter(s), then the amount of Registrable Securities to be offered for the accounts of Stockholders shall be determined based on the provisions of Section 5.03(c).
(b) Subject to Section 5.03(c), the Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and shall use its commercially reasonable efforts to include in cause the securities managing Underwriter or Underwriters of a proposed Underwritten Offering to permit the Registrable Securities requested by the Stockholders pursuant to this Section 5.03 to be registered by such registration statement all Warrant Shares that included in a Piggyback Registration on the Holder indicates same terms and conditions as any similar securities of the Company included in such notice that Registration and to permit the Holder desires sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. If no written request for inclusion from a Stockholder is received within the specified time, each such Stockholder shall have no further right to sell, subject participate in such Underwritten Offering. All such Stockholders proposing to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder distribute their Registrable Securities through an Underwritten Offering under this Section 5.03 shall agree to (i) enter into an underwriting agreement, if required, agreement in customary form with the underwriter or underwriters Underwriter(s) selected for such Underwritten Offering by the Company.
(c) If the managing Underwriter or Underwriters in an Underwritten Offering that is to be a Piggyback Registration, in good faith, advises the Company and the Stockholders participating in the Piggyback Registration that the dollar amount or number of shares of Common Stock that the Company desires to sell, taken together with (i) the shares of Common Stock, if any, as to which Registration has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Stockholders hereunder, (ii) the Registrable Securities as to which registration has been requested pursuant to Sections 5.01 and 5.02, and (iiiii) sell the Holder’s securitiesshares of Common Stock, if the Company so requestsany, on the same basis and upon the same terms as the to which Registration has been requested pursuant to separate written contractual piggy-back registration rights of other securities covered by such registration statement, other than securities proposed to be registered by the holders stockholders of the Preferred Stock (as defined below)Company, and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount Maximum Number of shares which Securities, then:
i. If the underwriters reasonably believe Registration is compatible with undertaken for the success of such underwritten offeringCompany’s account, the Company shall only be required to include in any such offering Registration:
(A) first, shares of Common Stock or other equity securities that the Company desires to sell for the Company’s account, which can be sold without exceeding the Maximum Number of Securities;
(B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Stockholders exercising their rights to register their Registrable Securities pursuant to Sections 5.02 and 5.03 hereof, pro rata based on the respective number of Registrable Securities that each Stockholder has requested be included in such Underwritten Offering and the aggregate number of Registrable Securities that the Stockholders have requested be included in such Underwritten Offering that can be sold without exceeding the Maximum Number of Securities;
(C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), shares of Common Stock, if any, as to which Registration has been requested pursuant to written contractual piggy-back registration rights of other stockholders of the Company, which can be registered sold without exceeding the Maximum Number of Securities
ii. If the Registration is pursuant to a request by persons or entities other than the Holder as Stockholders or the underwriters believe will not jeopardize Company, then the success Company shall include in any such Registration
(A) first, shares of Common Stock or other equity securities, if any, of such offeringrequesting persons or entities, other than the Stockholders, which can be sold without exceeding the Maximum Number of Securities;
(B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Stockholders exercising their rights to register their Registrable Securities pursuant to Sections 5.02 and 5.03 hereof, pro rata based on the respective number of Registrable Securities that each Stockholder has requested be included in such Underwritten Offering and the aggregate number of Registrable Securities that the Stockholders have requested be included in such Underwritten Offering that can be sold without exceeding the Maximum Number of Securities;
(C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and
(D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (bB) if and (C), shares of Common Stock or other equity securities for the number account of shares other persons or entities that the Company is able obligated to register is limited due pursuant to Rule 415 separate written contractual arrangements with such persons or other SEC shelf registration rulesentities, which can be sold without exceeding the Maximum Number of Securities.
iii. Any Stockholder shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company shall only be required and the Underwriter or Underwriters (if any) of its intention to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any from such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation Piggyback Registration prior to the Holder or any other holderpricing of such Underwritten Offering. The Company shall have exclusive control over (whether on its own good faith determination or as the preparation and filing result of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the a request for withdrawal or revocation thereof. The Company’s obligations by persons pursuant to this Section 5 are subject to separate written contractual obligations) may withdraw a Registration Statement filed with the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred Commission in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating a Piggyback Registration at any time prior to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent effectiveness of the Companysuch Registration Statement. Notwithstanding anything to the contrary set forth hereinin this Agreement, the Holder hereby expressly agrees and acknowledges that any registration rights of Company shall be responsible for the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders Registration Expenses incurred in connection with the purchase and sale Piggyback Registration prior to its withdrawal under this Section 5.03.
(d) For purposes of the Preferred Stockclarity, any Registration effected pursuant to Section 5.03 hereof shall not be counted as a Registration effected under Section 5.02 hereof.
Appears in 1 contract
Piggyback Registration Rights. IfThe Company covenants and agrees with the Representative and any other Holders or subsequent Holders of the Registrable Securities that if, at any time during within the three-year period commencing on one year and ending five years after the date hereofEffective Date, the Company it proposes or is required to file a registration statement registering with respect to any shares class of Common Stock equity or securities convertible into or exchangeable for Common Stock equity-related security (other than in connection with an offering to the Company's employees or in connection with an acquisition, merger or similar transaction) under the Act in a primary registration on Form S-4 or Form S-8, or behalf of the Company and/or in a secondary registration on behalf of holders of such other forms as securities and the U.S. Securities and Exchange Commission registration form to be used may hereafter promulgate be used for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own accountRegistrable Securities, the Company will give prompt written notice (which, in the case of a registration statement or notification pursuant to the exercise of demand registration rights other than those provided in Section 10(a) of this Agreement, shall give be within ten (10) business days after the Company's receipt of notice of such exercise and, in any event, at least 20 30 days prior written notice to such filing) to the Holder Holders of Registrable Securities (regardless of whether some of the Holders have theretofore availed themselves of the right provided in Section 10(a) of this Agreement) at the addresses appearing on the records of the Company of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts file a registration statement and will offer to include in the securities to be registered by such registration statement all Warrant Shares that any of the Holder indicates in such notice that the Holder desires to sell, Registrable Securities subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to paragraphs (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securitiesof this paragraph (b), if such number of Registrable Securities with respect to which the Company so requests, on has received written requests for inclusion therein within ten (10) days after the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered giving of notice by the holders of the Preferred Stock (as defined below), and provided that if the number of shares Company. All registrations requested by the Holder pursuant to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, this paragraph (b) if the number of shares the Company is able are referred to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holderherein as "Piggyback Registrations". The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations All Piggyback Registrations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably paragraph (b) will be requested by made solely at the Company, the underwriter(s's expense (other than as provided in Section 10(d) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreementshereof), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all . This paragraph is not applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.a registration
Appears in 1 contract
Samples: Warrant Agreement (Jaymark Inc)
Piggyback Registration Rights. If, If the Company at any time during the three-year period commencing on the date hereofproposes to register for sale any Common Shares, the Company proposes or is required pursuant to file a registration statement, including in each case pursuant to any shelf registration statement registering (including pursuant to clause (3) below) and including by effecting any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8underwritten public offering, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own accountaccount or for the account of any other person (including a Demand Party) (collectively, an “Offering”) (with customary exceptions to be negotiated and set out in the Company Registration Rights Agreement, including at-the-market offering programs, business combination transactions, dividend reinvestment plans, stock purchase plans, and employee benefit plans, which shall give at least 20 days prior written notice include, without limitation, any of the Company’s incentive compensation plans), each Demand Party shall be entitled to participate in such Offering; provided that the party who initiated such Offering (whether the Company, a Demand Party or another person entitled to registration rights) (the “Initiating Party”) shall have first priority to register and sell all of such securities that such Initiating Party requested to be sold and provided further that if the Initiating Party is a Demanding Holder, then other Demand Parties shall be entitled to participate on a pro rata basis with such Demanding Holder based on their relative percentage interests in the Company. After giving effect to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include priority in the securities preceding sentence, in the event that such Offering is:
(A) for the account of (i) the Company, then each Demand Party and any other person entitled to be registered by piggyback registration rights with respect to such registration statement all Warrant Shares that the Holder indicates shall be entitled to participate on a pro rata basis based on their relative percentage interests in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if any other person other than the Company so requestsor a Demand Party, on the same basis then (x) each Demand Party and upon the same terms as the any other securities covered by such person entitled to piggyback registration statement, other than securities proposed rights with respect to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by entitled to participate on a pro rata basis based on their relative percentage interests in the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.Company and
Appears in 1 contract
Piggyback Registration Rights. IfSubject to Section 6, if at any time during the three-year period commencing on the date hereofor from time to time, the Company proposes to register any of its equity securities under the Securities Act with respect to an offering for its own account or is required to file for the account of others (other than a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8S-8 (or any successor form) or any other registration statement relating solely to employee benefit plans or filed in connection with an exchange offer, or such other forms as a transaction to which Rule 145 (or any successor provision) under the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof)Act applies, whether or not for its own account, then the Company shall in each case give at least 20 days prior written notice of such proposed filing to the Holder of its intention to do so. Upon written request by as soon as practicable (but no later than twenty (20) business days) before the anticipated initial filing date, and such notice shall offer the Holder within 10 days after receipt the opportunity to register such number of shares of Restricted Stock as such notice, the Company shall use its commercially reasonable efforts Holder may request. The Holder desiring to include have Restricted Stock included in the securities to be registered by such registration statement all Warrant Shares that shall so advise the Holder indicates Company in such writing within ten (10) business days after the date on which the Company's notice that is so given, setting forth the Holder desires to sellnumber of shares of Restricted Stock for which registration is requested. The Company shall, subject to the following further provisions of this Agreement, use its reasonable best efforts to cause the managing underwriter or underwriters to permit the Holder of the Restricted Stock requested to be registered under the Securities Act (and any related qualification or registration under blue sky laws) to include such registered Stock in such offering on the same terms and conditions: (a) if conditions as any similar securities of the Company therein, and to include such registration statement is for a prospective underwritten offering, Registered Stock within any underwriting involved therein all of the Restricted Stock that the Holder shall agree has requested to (i) enter into be registered. The right of the Holder to registration pursuant to this Section 2 in connection with an underwritten offering by the Company shall, unless the Company otherwise assents, be conditioned upon such Holder's participation as a seller in such underwritten offering and its execution of an underwriting agreement, if required, in customary form agreement with the managing underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating if the managing underwriter or underwriters of such offering deliver a written opinion to the Holder’s registered Company that either because of (a) the kind of securities that the Company, the Holder and any other persons or entities intended to be included in such offering or (b) the size of the offering that the Company, the Holder and any registration hereunderother persons or entities intend to make, the success of the offering would be materially and all fees adversely affected by inclusion of the Restricted Stock requested to be included, then (i) in the event that the size of the offering is the basis of such managing underwriter's opinion, the number of shares of Restricted Stock to be registered and expenses offered for counsel to the account of the Holder, and any other persons or entities intended to be included in such offering, shall be borne reduced pro rata on the basis of the number of securities requested by such Holder to be registered and paid offered to the extent necessary to reduce the total amount of securities to be included in such offering to the amount recommended by such managing underwriter or underwriters (provided that if securities are being registered and offered for the Holder. The account of other persons or entities in addition to the Company, such reduction shall not be proportionally greater than any similar reductions imposed on such other persons or entities) and (ii) in the event that the combination of securities to be offered is the basis of such managing underwriters opinion, (x) the Restricted Stock to be included in such registration rights and other rights granted offering shall be reduced as described in this Section 5 are not assignableclause (i) above or (y) if such actions would, in whole or in partthe reasonable judgment of the managing underwriter, be insufficient to substantially eliminate the adverse effect that inclusion of the Restricted Stock requested to be included would have on such offering, such Restricted Stock will be excluded entirely from such registration and offering. Any Restricted Stock excluded from an underwriting shall, if applicable, be withdrawn from registration and shall not, without the prior written consent of the Company. Notwithstanding anything , be transferred in a public distribution prior to the contrary set forth herein, earlier of ninety (90) days (or such other shorter period of time as the managing underwriter may require) after the effective date of the registration statement or ninety (90) days after the date the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder such Restricted Stock are subordinate to those notified of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockexclusion.
Appears in 1 contract
Samples: Registration Rights Agreement (Indigo-Energy, Inc.)
Piggyback Registration Rights. IfAs used herein, a “Registration Statement” shall mean any registration statement filed by the Company with the Commission under the Securities Act at any time during the three-year period or from time to time commencing on a date within one year that any Underlying Shares may be issuable to the Holder and while any Registrable Securities remain outstanding; provided, however, that a Registration Statement for the purposes hereof shall not include: (A) any registration statement (or amendment thereto) filed by the Company which has not been declared effective on or before the date hereof; (B) any registration statement on Form S-3 (or any successor form) filed by the Company for the purpose of effecting offers and sales of securities on a continuous or delayed basis pursuant to Rule 415(a)(ix) or (x) under the Securities Act; (C) a registration relating to employee benefit plans (whether effected on Form S-8 or its successor); or (D) a registration effected on Form S-4 (or its successor). If at any time or from time to time while any Registrable Securities remain outstanding, the Company proposes shall determine to register or is shall be required to file a registration statement registering register any shares of its Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof)Stock, whether or not for its own account, the Company shall give shall:
(i) provide to each Holder written notice thereof at least 20 seven (7) days prior written notice to the Holder filing of its intention to do so. Upon the Registration Statement by the Company in connection with such registration;
(ii) include in such registration, and in any underwriting involved therein, all those Registrable Securities specified in a written request by each Holder received by the Holder Company within 10 five (5) days after receipt the Company mails the written notice referred to above. The Company may withdraw the registration at any time. If a registration covered by this Section 5.5 is an underwritten registration on behalf of the Company, and the underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such noticeregistration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company shall use its commercially reasonable efforts to include in such registration: (1) first, the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires Company proposes to sell, subject (2) second, the Registrable Securities and other securities requested to be included in such registration, pro rata among the selling Holders and any other selling security holders on the basis of the number of Registrable Securities owned by each such Holder and other selling security holders. The Holders’ right to have Registrable Securities included in the first registration statement filed by the Company may be deferred to the following terms second registration statement filed by the Company, which deferral may be continued to the third or subsequent registration statement so long as the registration statements are pursuant to underwritten offerings and conditions: the underwriter determines in good faith that marketing factors require exclusion of some or all of the Registrable Securities held by the Holders, but such deferral shall be only to the extent of such required exclusion as determined by the underwriter; and
(aiii) if such the registration statement is for a prospective an underwritten offeringregistration, the each Holder of Registrable Securities shall agree to (i) enter into an underwriting agreement, if required, agreement in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of provide such information as may regarding Holder that the underwriter shall reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred request in connection with the registration contemplated herebypreparation of the prospectus describing such offering, including without limitation registration and filing fees, printing expenses, and fees and expenses completion of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockFINRA Questionnaires.
Appears in 1 contract
Piggyback Registration Rights. If, If the Company at any time during the three-year period commencing on the date hereof, the Company proposes or is required determines to file a registration statement registering any shares under the 1933 Act to register the offer and sale, by the Company, of Common Stock or securities convertible into or exchangeable for Common Stock Shares (other than (x) on Form S-4 or Form S-8S-8 under the 1933 Act or any successor forms thereto, (y) an at-the-market offering, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for (z) a registration of securities in transactions for which Form S-4 solely relating to an offering and sale to employees or Form S-8 may be used as directors of the date hereofCompany pursuant to any employee stock plan or other employee benefit plan arrangement), whether or not for its own account, the Company shall shall, as soon as reasonably practicable, give at least 20 days prior written notice to the Holder Investor of its intention to do so. Upon so register the offer and sale of Shares and, upon the written request request, given within five (5) Business Days after delivery of any such notice by the Holder within 10 days after receipt Company, of the Investor to include in such noticeregistration the Investor’s Shares (which request shall specify the number of Investor’s Shares proposed to be included in such registration), the Company shall use its commercially reasonable efforts to include in the securities cause all such Investor’s Shares to be registered by included in such registration statement all Warrant on the same terms and conditions as the Shares otherwise being sold pursuant to such registered offering. If the registration under which the Company gives notice pursuant to this Section 10.6(d) is an underwritten offering and the managing underwriter or managing underwriters of such offering advise the Company and the Investor that, in its or their reasonable view, the amount of Shares requested to be included in such registration (including the Investor’s Shares requested by the Investor to be included in such offering and any Shares that the Holder indicates Company proposes to be included that are not the Investor’s Shares) exceeds the number of Shares which can be sold in an orderly manner in such notice offering within a price range acceptable to the Company (the Maximum Offering Size), then the Company shall so advise the Investor and shall include in such offering the number of Shares which can be so sold in the following order of priority, up to the Maximum Offering Size: (A) first, the Shares that the Holder desires Company proposes to sell, subject sell up to the following terms Maximum Offering Size and conditions: (aB) if such registration statement is for a prospective underwritten offeringsecond, the Holder shall agree Investor’s Shares requested to (i) enter into an underwriting agreementbe included in such registration. If the Investor requests that any Investor’s Shares be included in a registration pursuant to this Section 10.6(d), if required, in customary form with then the underwriter or Investor must sell such Investor’s Shares to the underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis terms and upon the same terms conditions as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation apply to the Holder or any other holderCompany. The Company shall have exclusive control over the preparation and filing of right to terminate or withdraw any registration statement proposed to be filed initiated by it under this Section 5 as well as any amendments and supplements thereto and 10.6(d) prior to the withdrawal effective date of such registration statement, whether or revocation thereofnot the Investor has elected to include Investor’s Shares in such registration statement. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision registration expenses of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the withdrawn registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted Company in this accordance with Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK10.6(b) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockhereof.
Appears in 1 contract
Samples: Convertible Security Funding Agreement (Niocorp Developments LTD)
Piggyback Registration Rights. IfAs used herein, a "Registration Statement" shall mean any registration statement filed by the Company with the Commission under the Securities Act at any time during the three-year period or from time to time commencing on a date within one year that any Underlying Shares may be issuable to the Holder and while any Registrable Securities remain outstanding; provided, however, that a Registration Statement for the purposes hereof shall not include: (A) any registration statement (or amendment thereto) filed by the Company which has not been declared effective on or before the date hereof; (B) any registration statement on Form S-3 (or any successor form) filed by the Company for the purpose of effecting offers and sales of securities on a continuous or delayed basis pursuant to Rule 415(a)(ix) or (x) under the Securities Act; (C) a registration relating to employee benefit plans (whether effected on Form S-8 or its successor); or (D) a registration effected on Form S 4 (or its successor). If at any time or from time to time while any Registrable Securities remain outstanding, the Company proposes shall determine to register or is shall be required to file a registration statement registering register any shares of its Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof)Stock, whether or not for its own account, the Company shall give shall:
(i) provide to each Holder written notice thereof at least 20 seven (7) days prior written notice to the Holder filing of its intention to do so. Upon the Registration Statement by the Company in connection with such registration;
(ii) include in such registration, and in any underwriting involved therein, all those Registrable Securities specified in a written request by each Holder received by the Holder Company within 10 five (5) days after receipt the Company mails the written notice referred to above. The Company may withdraw the registration at any time. If a registration covered by this Section 5.7 is an underwritten registration on behalf of the Company, and the underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such noticeregistration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company shall use its commercially reasonable efforts to include in such registration: (1) first, the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires Company proposes to sell, subject (2) second, the Registrable Securities and other securities requested to be included in such registration, pro rata among the selling Holders and any other selling security holders on the basis of the number of Registrable Securities owned by each such Holder and other selling security holders. The Holders' right to have Registrable Securities included in the first registration statement filed by the Company may be deferred to the following terms second registration statement filed by the Company, which deferral may be continued to the third or subsequent registration statement so long as the registration statements are pursuant to underwritten offerings and conditions: the underwriter determines in good faith that marketing factors require exclusion of some or all of the Registrable Securities held by the Holders, but such deferral shall be only to the extent of such required exclusion as determined by the underwriter; and
(aiii) if such the registration statement is for a prospective an underwritten offeringregistration, the each Holder of Registrable Securities shall agree to (i) enter into an underwriting agreement, if required, agreement in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of provide such information as may regarding Holder that the underwriter shall reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred request in connection with the registration contemplated herebypreparation of the prospectus describing such offering, including without limitation registration and filing fees, printing expenses, and fees and expenses completion of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred StockFINRA Questionnaires.
Appears in 1 contract
Samples: Note Exchange Agreement (Lazarus Management Co LLC)
Piggyback Registration Rights. IfThe Company covenants and agrees with the Placement Agent and any other Holders or subsequent Holders of the Registrable Securities that if, at any time during within the three-year period commencing two years and ending five years after the Effective Date, it proposes to file a Registration Statement with respect to any class of security under the Act in a primary registration on behalf of the date hereofCompany and/or in a secondary registration on behalf of holders of such securities and the registration form to be used may be used for registration of the Registrable Securities, the Company proposes will give prompt written notice (which, in the case of a Registration Statement or is required notification pursuant to file a the exercise of demand registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (rights other than on Form S-4 or Form S-8those provided in Section 10(a) of this Agreement, or shall be within ten (10) business days after the Company's receipt of notice of such other forms as exercise) to, the U.S. Holders of Registrable Securities and Exchange Commission may hereafter promulgate for registration (regardless of securities in transactions for which Form S-4 or Form S-8 may be used as whether some of the date hereof), whether or not for its own account, Holders shall have theretofore availed themselves of the right provided in Section 10(a) of this Agreement) at the addresses appearing on the records of the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms file a Registration Statement and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required will offer to include in such offering that registration statement to the maximum extent possible such number of shares requested Registrable Securities with respect to be registered which the Company has received written requests for inclusion therein within ten (10) days after the giving of notice by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holderCompany. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations All registrations requested pursuant to this Section 5 10(b) are subject referred to the Holder’s cooperation with respect herein as "Piggyback Registrations." This paragraph is not applicable to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested a Registration Statement filed by the Company, Company with the underwriter(s) Commission on Forms S-4 or S-8 or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stocksuccessor forms.
Appears in 1 contract
Piggyback Registration Rights. IfThe Company covenants and agrees with the Underwriters and any other Holders or subsequent Holders of the Registrable Securities that if, at any time during within the three-year period commencing on one year and ending five years after the date hereofEffective Date, the Company it proposes or is required to file a registration statement registering with respect to any shares class of Common Stock equity or securities convertible into or exchangeable for Common Stock equity-related security (other than in connection with an offering to the Company's employees or in connection with an acquisition, merger or similar transaction) under the Act in a primary registration on Form S-4 or Form S-8, or behalf of the Company and/or in a secondary registration on behalf of holders of such other forms as securities and the U.S. Securities and Exchange Commission registration form to be used may hereafter promulgate be used for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own accountRegistrable Securities, the Company will give prompt written notice (which, in the case of a registration statement or notification pursuant to the exercise of demand registration rights other than those provided in Section 10(a) of this Agreement, shall give be within ten (10) business days after the Company's receipt of notice of such exercise and, in any event, at least 20 30 days prior written notice to such filing) to the Holder Holders of Registrable Securities (regardless of whether some of the Holders have theretofore availed themselves of the right provided in Section 10(a) of this Agreement) at the addresses appearing on the records of the Company of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts file a registration statement and will offer to include in the securities to be registered by such registration statement all Warrant Shares that any of the Holder indicates in such notice that the Holder desires to sell, Registrable Securities subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to paragraphs (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securitiesof this paragraph (b), if such number of Registrable Securities with respect to which the Company so requests, on has received written requests for inclusion therein within ten (10) days after the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered giving of notice by the holders of the Preferred Stock (as defined below), and provided that if the number of shares Company. All registrations requested by the Holder pursuant to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, this paragraph (b) if the number of shares the Company is able are referred to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holderherein as "Piggyback Registrations". The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations All Piggyback Registrations pursuant to this paragraph (b) will be made solely at the Company's expense (other than as provided in Section 5 are subject 10(d) hereof). This paragraph is not applicable to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested a registration statement filed by the Company, Company with the underwriter(s) Commission on Forms S-4 or S-8 or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stocksuccessor forms.
Appears in 1 contract
Piggyback Registration Rights. If, at At any time during following one year after ----------------------------- the three-year period commencing on Closing Date, whenever HDS proposes to register any HDS Stock for its own or others' account under the date hereof1933 Act for a public offering, the Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration (i) registrations of securities in transactions for which Form S-4 or Form S-8 may shares to be used as consideration for acquisitions of additional businesses by HDS and (ii) registrations relating to employee benefit plans, HDS shall give each of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior STOCKHOLDERS prompt written notice to the Holder of its intention intent to do so. Upon the written request by of any of the Holder STOCKHOLDERS given within 10 thirty (30) days after receipt of such notice, the Company HDS shall use its commercially reasonable efforts to include in the securities cause to be registered by included in such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred HDS Stock (as defined below), and issued pursuant to this Agreement which any such STOCKHOLDER requests; provided that if HDS shall have the -------- ---- right to reduce the number of shares requested included in such registration to the extent that inclusion of such shares could, in the opinion of tax counsel to HDS or its independent auditors, jeopardize the status of the transactions contemplated hereby and by the Holder Registration Statement as a reorganization described in Section 368(a)(1)(A) of the Code. In addition, if HDS is advised in writing in good faith by any managing underwriter of an underwritten offering of the securities being offered pursuant to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering any registration statement under this Section 17.1 that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares to be sold by persons other than HDS is greater than the Company is able number of such shares which can be offered without adversely affecting the offering, HDS may reduce the number of shares offered for the accounts of such persons to register is limited due a number deemed satisfactory by such managing underwriter; provided that such reduction shall be -------- ---- made first by reducing the number of shares to Rule 415 or be sold by persons other SEC shelf registration rulesthan HDS, the Company stockholders named on Annex III hereto, the stockholders of the Founding Companies (the "Founding Stockholders"), and any person or persons who have required such registration pursuant to "demand" registration rights granted by HDS; thereafter, if a further reduction is required, it shall only be required made first by reducing the number of shares to register be sold by the Warrant Shares stockholders named on Annex III hereto and the Holder elects Founding Stockholders, with such further reduction being made so that to include on a pari passu basis with the other shares being registered, other than extent any shares proposed can be sold by stockholders named in Annex III hereto and the Founding Stockholders, each such stockholder will be permitted to be registered by sell a number of shares proportionate to the holders number of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering shares of securities contemplated HDS Stock owned by such registration statement without stockholder immediately after the Closing, provided that if any obligation stockholder does not wish to sell all shares such stockholder is permitted to sell, the Holder or any other holder. The Company opportunity to sell additional shares shall have exclusive control over be reallocated in the preparation and filing of any registration statement proposed same manner to be filed under this Section 5 as well as any amendments and supplements thereto those stockholders named in Annex III hereto and the withdrawal or revocation thereof. The Company’s obligations pursuant Founding Stockholders who wish to this Section 5 are subject to the Holder’s cooperation with respect to any sell more shares until no more shares can be sold by such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockstockholders.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Hospitality Design & Supply Inc)
Piggyback Registration Rights. If(a) Notwithstanding Section 8.1, at if ----------------------------- prior to the first anniversary of this Agreement, NCI determines to Register any time during the three-year period commencing on the date hereof, the Company proposes or is required to file a registration statement registering any shares of Common Stock or its securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not either for its own accountaccount or the account of a stockholder or stockholders exercising Registration rights, other than a Registration relating solely to employee benefit plans, or a Registration relating solely to a transaction pursuant to Rule 145 promulgated under the Act or a Registration on any Registration form which does not permit secondary sales or does not include substantially the same information as would be required to be included in a Registration statement covering the sale of the Shares, NCI shall promptly give to Xxxxxxx notice thereof and, subject to any registration rights which are superior to Xxxxxxx'x, include in such Registration (and any related qualification under blue sky laws), and in any underwriting involved therein, the Company shall give at least 20 days prior written notice to the Holder number of its intention to do so. Upon Shares specified in a written request made by the Holder Xxxxxxx within 10 ten (10) days after receipt of such notice, written notice from NCI.
(b) If the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such Registration of which NCI gives notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offeringRegistered public offering involving an underwriting, the Holder Xxxxxxx'x rights to Registration shall agree to be conditioned upon (i) enter into Xxxxxxx'x participation in such underwriting and (ii) the inclusion of Xxxxxxx'x Shares in the underwriting pursuant to an underwriting agreement, if required, agreement in customary form with the underwriter or underwriters selected by NCI; provided, however, that in the Companyevent of any reduction in the securities to be included in the Registration, the securities that may be included in the Registration and underwriting shall be allocated (1) first, to NCI, and (ii2) sell the Holder’s securitiessecond, if the Company so requests, on the same basis among Xxxxxxx and upon the same terms as the other security holders distributing their securities covered by through such registration statementunderwriting, other than securities proposed to be registered by the holders of the Preferred Stock in proportion (as defined below), and provided that if nearly as practicable) to the number of shares requested owned by the Holder each such party unless such other security holders have rights superior to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration Xxxxxxx hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.
Appears in 1 contract
Samples: Restricted Stock Agreement (News Communications Inc)
Piggyback Registration Rights. IfThe Company covenants and agrees ----------------------------- with the Underwriters and any other Holders or subsequent Holders of the Registrable Securities that if, at any time during within the three-year period commencing one year and ending five years after the Effective Date, it proposes to file a registra-tion statement with respect to any class of equity or equity-related security (other than in connection with an offering to the Company's employees or in connection with an acquisition, merger or similar transaction) under the Act in a primary registration on behalf of the date hereofCompany and/or in a secondary registration on behalf of holders of such securities and the registration form to be used may be used for registration of the Registrable Securities, the Company proposes will give prompt written notice (which, in the case of a registration statement or is required notification pursuant to the exercise of demand registration rights other than those provided in Section 10(a) of this Agreement, shall be within ten (10) business days after the Company's receipt of notice of such exercise and, in any event, shall be at least 30 days prior to such filing) to the Holders of Registrable Securities (regardless of whether some of the Holders shall have theretofore availed themselves of the right provided in Section 10(a) of this Agreement) at the addresses appearing on the records of the Company of its intention to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts will offer to include in the securities to be registered by such registration statement all Warrant Shares that of the Holder indicates in such notice that the Holder desires to sell, Registrable Securities subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to paragraphs (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securitiesof this paragraph (b), if such number of Registrable Securities with respect to which the Company so requests, on has received written requests for inclusion therein within ten (10) days after the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered giving of notice by the holders of the Preferred Stock (as defined below), and provided that if the number of shares Company. All registrations requested by the Holder pursuant to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, this paragraph (b) if the number of shares are referred to herein as "Piggyback Registrations". This paragraph is not applicable to a registration statement filed by the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective Commission on Forms S-4 or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder S-8 or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stocksuccessor forms.
Appears in 1 contract
Samples: Warrant Agreement (Dsi Toys Inc)
Piggyback Registration Rights. If, (a) If at any time during or from time to time between the three-year period commencing on Filing Deadline Date and the date hereof, expiration of the Effectiveness Period the Company proposes or is required shall propose to file a registration statement registering register any shares of Common Stock or securities convertible into or exchangeable for Common Stock public sale under the Securities Act (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereofa "Company Registration"), whether or not for its own account, the Company shall give at least 20 days prior the Holders prompt written notice of the proposed registration and shall include in such registration on the same terms and conditions as the other securities included in such registration such number of shares of Registrable Common Stock as the Holders shall request within five (5) business days after the giving of such notice (a "Piggyback Registration"); provided, however, that the Company may at any time prior to the Holder effectiveness of any such registration statement, in its sole discretion and without the consent of the Holders, abandon the proposed offering in which the Holders had requested to participate (provided that the Company gives the Holders prompt notice of such decision); and provided further that the Holders shall be entitled to withdraw any or all of its intention shares of Registrable Common Stock to do so. Upon written request be included in a registration statement under this Section 3(a) at any time prior to the date on which the registration statement with respect to such shares of Underlying Common Stock is declared effective by the Holder within 10 days after receipt of SEC. The Company shall be entitled to select the investment bankers and/or managers, if any, to be retained in connection with any registration referred to in this Section 3(a), provided such noticeinvestment bankers and/or managers are reasonably acceptable to the Holders.
(b) Notwithstanding anything to the contrary contained elsewhere herein, the Company shall use its commercially reasonable efforts registration rights granted to include Stockholder in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, Section 3(a) are expressly subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to :
(i) enter into The Company shall not be obligated to include shares of Registrable Common Stock in an underwriting agreement, offering as contemplated by Section 3(a) if required, the Company is advised in customary form with writing by the managing underwriter or underwriters selected by of such offering (with a copy to the Company, and (ii) sell the Initial Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offeringoffering would in its or their good faith judgment be jeopardized by such inclusion (after consideration of all relevant factors, including without limitation, the impact of any delay caused by including such shares); provided, however, that the Company shall only in any case be required obligated to include in such offering that number of shares requested to be registered by the Holder of Registrable Common Stock in such offering, if any, as the such underwriter or underwriters believe shall determine will not jeopardize the success of such offering.
(ii) The Company shall not be obligated to include any shares of Underlying Common Stock in any registration by the Company of any Common Stock in connection with any merger, acquisition, exchange offer, or any other business combination, including any transaction within the scope of Rule 145 promulgated pursuant to the Securities Act, subscription offer, dividend reinvestment plan or stock option or other director or employee incentive or benefit plan.
(biii) if The Company shall use all commercially reasonable efforts to cause the managing underwriter or underwriters of a proposed underwritten offering to permit the Registrable Common Stock requested to be included in a registration of Common Stock pursuant to this Section 3 to be included on the same terms and conditions as any similar securities included therein. Notwithstanding the foregoing, the Company shall not be required to include the Holders' Registrable Common Stock in such offering unless the Holders accept the terms of the underwriting agreement between the Company and the managing underwriter or underwriters and otherwise complies with the provisions of Section 7 hereof. If the managing underwriter or underwriters of a proposed underwritten offering advise the Company in writing that in its or their good faith judgment the total amount of securities, including securities requested to be included in a registration of Common Stock pursuant to this Section 3 and other similar securities, to be included in such offering is sufficiently large to jeopardize the success of such offering, then in such event the securities to be included in such offering shall be allocated first to the Company and then, to the extent that any additional securities can, in the good faith judgment of such managing underwriter or underwriters, be sold without creating any such jeopardy to the success of such offering, to the Holders based upon the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed of Registrable Common Stock requested to be registered by included in such registration.
(iv) In the holders event that some but less than all of the Preferred Stock; and (c) the Company may withdraw any such Holders' shares of Underlying Common Stock are included in an offering contemplated by a registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject 3, the Holders shall execute one or more "lockup" letters in the form attached hereto as Exhibit C, setting forth an agreement by the Holders not to offer for sale, sell, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any shares of Common Stock, or any securities convertible into or exchangeable into or exercisable for any shares of Common Stock, for a period of 90 days from the date such offering commences; provided, however, that if the period of any such "lockup" applicable to the Holder’s cooperation Company or any director, officer or affiliate of the Company with respect to any such proposed registrationregistration statement shall be less than ninety (90) days, including but not limited then the period of time applicable to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, Holders shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent such lesser period of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stocktime.
Appears in 1 contract
Piggyback Registration Rights. (a) If, at any time during after the three-year period commencing on the date hereofMandatory Registration Termination Date, the Company proposes to register any of its Common Stock under the Securities Act, whether as a result of a primary or secondary offering of Common Stock or pursuant to registration rights granted to holders of other securities of the Company (but excluding in all cases any registrations to be effected on Forms S-4 or S-8 or other applicable successor forms), the Company shall, each such time, give to the Investors holding Registrable Shares written notice of its intent to do so. Upon the written request of any such Investor given within 20 days after the giving of any such notice by the Company, the Company shall use reasonable efforts to cause to be included in such registration the Registrable Shares of such Investor, to the extent requested to be registered; provided that (i) the number of Registrable Shares proposed to be sold by such Investor is required equal to file a at least twenty-five percent (25%) of the total number of Registrable Shares then held by such participating Investor, (ii) such Investor agrees to sell those of its Registrable Shares to be included in such registration statement registering in the same manner and on the same terms and conditions as the other shares of Common Stock which the Company proposes to register and (iii) if the registration is to include shares of Common Stock to be sold for the account of the Company or any party exercising demand registration rights pursuant to any other agreement with the Company in an underwritten offering, the proposed managing underwriter does not advise the Company that in its opinion the inclusion of such Investor's Registrable Shares (without any reduction in the number of shares to be sold for the account of the Company or such party exercising demand registration rights) is likely to materially and adversely affect the success of the offering or the price that would be received for any shares of Common Stock or securities convertible into or exchangeable for Common Stock offered, in which case the rights of such Investor shall be a provided in Section 4(b) hereof.
(other than on Form S-4 or Form S-8, or such other forms as b) If a registration pursuant to Section 4(a) hereof involves an underwritten offering and the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, managing underwriter shall advise the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request by the Holder within 10 days after receipt of such notice, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if requiredwriting that, in customary form with the underwriter or underwriters selected by the Companyits opinion, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares Registrable Shares requested by the Holder Investors to be registered included in such offering exceeds the amount of shares which the underwriters reasonably believe registration is compatible with likely to materially and adversely affect the success of the offering or the price that would be received for any Registrable Shares offered in such underwritten offering, then, notwithstanding anything in Section 4(a) to the contrary, the Company shall only be required to include in such offering that registration, to the extent of the number of shares requested to Registrable Shares which the Company is so advised can be registered by the Holder as the underwriters believe will not jeopardize the success of sold in such offering, (bi) if first, the number of shares Registrable Shares proposed to be included in such registration for the account of the Company is able and/or any stockholders of the Company (other than the Investors) that have exercised demand registration rights, in accordance with the priorities, if any, then existing among the Company and/or such stockholders of the Company with registration rights (other than the Investors), and (ii) second, the Registrable Shares requested to register is limited due be included in such registration by all other stockholders of the Company who have piggyback registration rights (including, without limitation, the Investors), pro rata among such other stockholders (including, without limitation, the Investors) on the basis of the number of Registrable Shares that each of them requested to Rule 415 or other SEC shelf registration rulesbe included in such registration.
(c) In connection with any offering involving an underwriting of shares under this Section 4, the Company shall only not be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 4 or otherwise to include the Registrable Shares of any Investor therein unless such Investor accepts and agrees to the terms of the underwriting, which shall be reasonable and customary, as well as any amendments and supplements thereto agreed upon between the Company and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested underwriters selected by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.
Appears in 1 contract
Samples: Registration Rights Agreement (Dobi Medical International Inc)
Piggyback Registration Rights. If, The Company agrees as follows:
(a) If the Company shall determine to register any shares of its Common Stock under the Act at any time during the three-year period commencing on the date hereof, and in connection therewith the Company proposes or is required may lawfully register any of the Shares, (other than pursuant to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 X-0, X-0 or Form S-8, any comparable form or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration filed in connection with an exchange offering of securities in transactions for which Form S-4 or Form S-8 may be used as of solely to the date hereof), whether or not for its own account, Company's existing shareholders) the Company shall will promptly give at least 20 days prior written notice thereof to the Holder of its intention to do soHolder. Upon the written request by of the Holder within 10 30 days after receipt of any such noticenotice from the Company, the Company shall use its commercially reasonable efforts to include in will, except as herein provided, cause all of the securities to be registered by such registration statement all Warrant Shares that which the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares has requested to be registered by to be included in such Registration Statement, all to the Holder as extent requisite to permit the underwriters believe will not jeopardize sale or other disposition of the success of such offering, Shares. However nothing herein shall prevent the Company from at any time abandoning or delaying any registration.
(b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than If any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably 8 shall be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, an underwritten public offering in whole or in part, without the prior written consent Company may require that the Shares requested for inclusion hereunder be included in the underwriting on the same terms and conditions as the securities otherwise being sold through the underwriters. If and in the event that the managing underwriter of such public offering shall be of the opinion that inclusion of all of the Shares would adversely affect the marketing of the securities to be sold by the Company therein, then the number of Shares otherwise to be included in the underwritten public offering may be reduced on a pro rata basis with the shares proposed to be included in such offering by any other selling shareholder (exclusive of the Company. Notwithstanding anything ).
(c) The Holder hereof may not exercise the rights granted in this Section 8 to effect the registration of the Shares under the Act prior to the third anniversary hereof.
(d) Anything herein to the contrary set forth hereinnotwithstanding, the Holder hereby expressly agrees and acknowledges that any Company shall not be obligated to provide the foregoing so-called "piggyback" registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockon more than two occasions.
Appears in 1 contract
Samples: Warrant Agreement (Boston Restaurant Associates Inc)
Piggyback Registration Rights. If, at any time during the three-year period commencing on after the date hereofof this Subscription Agreement and expiring five (5) years thereafter, the Company proposes or is required to file a registration statement registering any shares or statements under the Securities Act for the public sale of the Common Stock or securities convertible into or exchangeable for Common Stock cash (other than on in connection with a merger or pursuant to Form S-4 X-0, Xxxx X-0 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for comparable registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereofstatement), whether or not for its own accountit will give written notice, the Company shall give at least 20 thirty (30) days prior written notice to the Holder filing of each such registration statement, to the undersigned of its intention to do so. Upon written request by If the Holder undersigned notifies the Company in writing within 10 ten (10) business days after receipt of any such noticenotice of its desire to include the Shares in such proposed registration statement, the Company shall use its commercially reasonable efforts afford the undersigned the opportunity to include have the Shares registered under such registration statement; provided, however, that in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective case of an underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requestsnotifies the undersigned in writing that the managing underwriter of such offering has notified the Company that the inclusion in the registration statement of any portion of the Shares would have an adverse effect on such underwritten offering, on then the same basis and upon managing underwriter may limit the same terms as the other securities covered by number of Shares to be included in such registration statementstatement only to the extent necessary to avoid such adverse effect; provided, further, however, that in the event securities of the Company held by any person or entity other than securities proposed the Company or the undersigned (the "Third Party Securities") are to be registered by the holders of the Preferred Stock (as defined below)included in such underwritten offering, and provided that if the managing underwriter shall have determined to limit the number of shares requested by the Holder of Common Stock or Third Party Securities to be registered so included, then such limitation shall be applied to the Shares and the Third Party Securities, based on the number of Shares and Third Party Securities requested to be included in such underwritten offering exceeds so that the amount of shares Third Party Securities are reduced by a percentage which is twice as great as the percentage which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stock.are
Appears in 1 contract
Piggyback Registration Rights. If, at any time during within the three-year period commencing two (2) years from the effective date of the Registration Statement and ending three (3) years thereafter, it proposes to register any class of security under the Act in a primary registration on behalf of the date hereofCompany and/or in a secondary registration on behalf of holders of such securities and the registration form to be used may be used for registration of the Warrants and/or Shares underlying the Warrants, the Company proposes or is required to file will give prompt written notice (which, in the case of a registration statement registering any shares pursuant to the exercise of Common Stock or securities convertible into or exchangeable for Common Stock (demand registration rights other than on Form S-4 or Form S-8those provided in section 13.1 above, or shall be within ten (10) business days after the Company's receipt of notice of such other forms as exercise and, in any event, shall be at least thirty (30) days prior to such filing) to the U.S. Securities and Exchange Commission may hereafter promulgate for registration Holders of securities in transactions for which Form S-4 or Form S-8 may be used as Warrants and/or Shares (regardless of whether some of the date hereof), whether or not for its own account, Holders shall have theretofore availed themselves of the right provided in section 13.1 above) at the address(es) appearing on the records of the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon effect a registration and will offer to include in such registration such number of Warrants and/or Shares with respect to which the Company has received written request by the Holder requests for inclusion therein within 10 ten (10) days after receipt of such notice, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by from the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms . All registrations requested pursuant to this section 13.2 are referred to herein as the other securities covered by such registration statement, other than securities proposed "Piggyback Registrations". This section 13.2 is not applicable to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed Registration Statement to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) Company on Forms S-4 or S-8 or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Companysuccessor forms. Notwithstanding the foregoing, underwriting discounts if the managing underwriter of the offering being registered shall determine in good faith and commissions and transfer taxes relating advise the Company in writing that the distribution of the Warrants and/or Shares requested to the Holder’s registered securities be included in any the registration hereunder, and all fees and expenses for counsel to concurrently with the Holder, shall be borne and paid securities being registered by the Holder. The registration rights Company would materially adversely affect the distribution of such securities by the Company, then the Holders of such Warrants and/or Shares shall delay their offering and other rights granted in this Section 5 are not assignable, in whole or in part, without sale for such period ending on (a) the prior written consent earlier of (i) ninety (90) days following the effective date of the Company's registration statement and (ii) the day upon which the underwriting syndicate, if any, for such offering shall have been disbanded or, (b) such date as the Company, the managing underwriter and Holders of Warrants and/or Shares shall otherwise agree. Notwithstanding anything In the event of such delay, the Company shall file such supplements or post-effective amendments and take any such other steps as may be necessary to permit such Holders to make their proposed offering and sale for a period of one hundred eighty (180) days immediately following the end of such period of delay. If any party disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock Company and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockmanaging underwriter.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Natural Gas Vehicle Systems Inc)
Piggyback Registration Rights. If, at At any time during following one year ----------------------------- after the three-year period commencing on Closing Date, whenever HDS proposes to register any HDS Stock for its own or others' account under the date hereof1933 Act for a public offering, the Company proposes or is required to file a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration (i) registrations of securities in transactions for which Form S-4 or Form S-8 may shares to be used as consideration for acquisitions of additional businesses by HDS and (ii) registrations relating to employee benefit plans, HDS shall give each of the date hereof), whether or not for its own account, the Company shall give at least 20 days prior STOCKHOLDERS prompt written notice to the Holder of its intention intent to do so. Upon the written request by of any of the Holder STOCKHOLDERS given within 10 thirty (30) days after receipt of such notice, the Company HDS shall use its commercially reasonable efforts to include in the securities cause to be registered by included in such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred HDS Stock (as defined below), and issued pursuant to this Agreement which any such STOCKHOLDER requests; provided that if HDS shall have the -------- ---- right to reduce the number of shares requested included in such registration to the extent that inclusion of such shares could, in the opinion of tax counsel to HDS or its independent auditors, jeopardize the status of the transactions contemplated hereby and by the Holder Registration Statement as a reorganization described in Section 368(a)(1)(A) of the Code. In addition, if HDS is advised in writing in good faith by any managing underwriter of an underwritten offering of the securities being offered pursuant to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only be required to include in such offering any registration statement under this Section 17.1 that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares to be sold by persons other than HDS is greater than the Company is able number of such shares which can be offered without adversely affecting the offering, HDS may reduce the number of shares offered for the accounts of such persons to register is limited due a number deemed satisfactory by such managing underwriter; provided that such reduction shall be -------- ---- made first by reducing the number of shares to Rule 415 or be sold by persons other SEC shelf registration rulesthan HDS, the Company stockholders named on Annex III hereto, the stockholders of the Founding Companies (the "Founding Stockholders"), and any person or persons who have required such registration pursuant to "demand" registration rights granted by HDS; thereafter, if a further reduction is required, it shall only be required made first by reducing the number of shares to register be sold by the Warrant Shares stockholders named on Annex III hereto and the Holder elects Founding Stockholders, with such further reduction being made so that to include on a pari passu basis with the other shares being registered, other than extent any shares proposed can be sold by stockholders named in Annex III hereto and the Founding Stockholders, each such stockholder will be permitted to be registered by sell a number of shares proportionate to the holders number of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering shares of securities contemplated HDS Stock owned by such registration statement without stockholder immediately after the Closing, provided that if any obligation stockholder does not wish to sell all shares such stockholder is permitted to sell, the Holder or any other holder. The Company opportunity to sell additional shares shall have exclusive control over be reallocated in the preparation and filing of any registration statement proposed same manner to be filed under this Section 5 as well as any amendments and supplements thereto those stockholders named in Annex III hereto and the withdrawal or revocation thereof. The Company’s obligations pursuant Founding Stockholders who wish to this Section 5 are subject to the Holder’s cooperation with respect to any sell more shares until no more shares can be sold by such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockstockholders.
Appears in 1 contract
Piggyback Registration Rights. If, at any time during Until the three-year period commencing on termination of the date hereofEffective Period (as defined in Section 5(a) below) and provided that the Registration Statement referred to in Section 2 above is not then effective, the Company proposes or is required will provide the Investors prompt written notice, at least 20 days prior to file a registration statement registering the anticipated filing date, of the Company's intention to register any shares of its Common Stock or securities convertible into or exchangeable for Common Stock (other than on Form S-4 or Form S-8, or such other forms as under the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof)Act, whether or not for sale for its own account, except for registrations on Form S-8 or S-4 or any successor or similar forms, or registration statements relating to Common Stock or any other shares of common stock of the company issuable upon exercise of employee or consultant share options or in connection with any employee benefit or similar plan of the Company. If such a registration by the Company shall give at least 20 days prior written involves a firm commitment underwritten offering registered with the Commission (a "Public Offering"), any Investors electing to participate in such offering must sell their Registrable Stock to the underwriters on the same terms and conditions as apply to the Company. If the registration involves a Public Offering and the managing underwriter thereof advises the Company that, in its view, the number of shares of Common Stock that the Company and the Investors intend to include in such registration exceeds the largest number of shares of Common Stock that can be sold without having a material adverse effect on such Public Offering (the "Maximum Offering Size"), the Company will include in such registration only that number of shares of Common Stock which does not exceed the Maximum Offering Size, in the following order of priorities: (i) first, all securities the Company proposes to sell for its own account, (ii) second, up to the full number of securities proposed to be registered for the account of the holders of securities entitled to inclusion of their securities in the registration statement by reason of demand registration rights, and (iii) third, the securities requested to be registered by other holders of securities entitled to participate in the registration (including the Shares), drawn from them pro-rata based on the number of shares each has requested to be included in such registration. The notice to the Holder Investors must set forth the Investors' rights under this Section 4 and shall offer the Investors the opportunity to include in such registration statement the number of its intention Shares that each Investor requests. The Investors must provide the Company notice of their intent to do so. Upon written request by include any or all of their Shares in the Holder registration statement within 10 days after the receipt of such notice, notice from the Company shall and must specify the number of Shares to be included in the registration statement. The Company will use its commercially reasonable efforts to include in effect the securities to be registered by such registration statement under the Securities Act of all Warrant Shares that the Holder indicates in such Company has been so required to register by the Investors, provided, however, that if, at any time after giving written notice that the Holder desires of its intention to sell, subject register any of its common stock pursuant to this Section 4 and prior to the following terms and conditions: (a) if such effective date of any registration statement is for a prospective underwritten offeringfiled in connection with such registration, the Holder shall agree Company determines for any reason not to (i) enter into an underwriting agreement, if required, in customary form with file the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the Company shall only give written notice to the Investors and, thereupon, shall be required to include in such offering that number relieved of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able its obligation to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant any Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations pursuant to this Section 5 are subject to the Holder’s cooperation with respect to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested by the Company, the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockregistration.
Appears in 1 contract
Piggyback Registration Rights. IfThe Company covenants and agrees ----------------------------- with the Representatives and any other or subsequent Warrant Holder(s) that if, at any time during within the three-year period commencing on the date hereoffirst anniversary of the Effective Date and ending at the Close of Business on the day immediately preceding the seventh anniversary of the Effective Date, it proposes to register any class of security under the Act in a primary registration on behalf of the Company or in a secondary registration on behalf of holders of such securities and the registration form to be used may be used for registration of the Shares or other securities for which the Warrants become exercisable, the Company proposes or is required to file will give prompt written notice (which, in the case of a registration statement registering any shares pursuant to the exercise of Common Stock or securities convertible into or exchangeable for Common Stock (demand registration rights other than on Form S-4 those provided in Section 12(a) of this Agreement, shall be within 10 business days after the Company's receipt of notice of such exercise and, in any event, shall be at least 45 days prior to such filing) to each Warrant Holder (regardless of whether the Warrant Holder shall have theretofore availed himself or Form S-8, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as herself of the date hereofright provided in Section 12(a), whether or not for its own account, ) at the addresses appearing on the records of the Company shall give at least 20 days prior written notice to the Holder of its intention to do soeffect a registration. Upon The Company will offer to include in such registration such number of Shares or other securities for which the Warrants are exercisable with respect to which the Company has received written request by the Holder requests for inclusion therein within 10 days after receipt of such noticenotice from the Company; provided, the Company shall use its commercially reasonable efforts to include in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective underwritten offeringto be underwritten, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on the same basis and upon the same terms as the other securities covered by such registration statement, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of such underwritten offering, the -------- Company shall only not be required to include the Shares or other securities for which the Warrants become exercisable in such offering registration to the extent the managing underwriter(s) determines in good faith that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone inclusion would materially adversely affect the offering of securities contemplated being made by such registration statement without any obligation to the Holder or any other holderregistration. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations All registrations requested pursuant to this Section 5 12(b) are subject referred to the Holder’s cooperation with respect herein as "Piggyback Registrations." This paragraph is not applicable to any such proposed registration, including but not limited to the provision of such information as may reasonably be requested a registration statement filed by the Company, the underwriter(s) Company on Forms S-4 or S-8 or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stocksuccessor forms.
Appears in 1 contract
Piggyback Registration Rights. If, 1. The Company shall give the Investor at any time during the three-year period commencing on the date hereof, least 30 days’ prior written notice of each filing by the Company proposes or is required to file of a registration statement registering any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than a registration statement on Form S-4 or Form S-8S-8 or on any successor forms thereto or a registration statement relating to the Company’s initial public offering) (each, or such other forms as a “Registration Statement”) with the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of (the date hereof“Commission”), whether or not for its own account, the Company shall give at least 20 days prior written notice to the Holder of its intention to do so. Upon written request If requested by the Holder Investor in writing within 10 20 days after receipt of any such notice, the Company shall, at the Company’s sole expense (other than the underwriting discounts, if any, payable in respect of the securities sold by an Investor), register all or, at Investor’s option, any portion of the Shares concurrently with the registration of such other securities, all to the extent requisite to permit the public offering and sale of the Shares through the securities exchange, if any, on which the Common Stock is being sold or on the over-the-counter market, and will use its reasonable best efforts through its officers, directors, auditors, and counsel to cause such Registration Statement to become effective as promptly as practicable. If the managing underwriter of any such offering shall determine and advise the Company that, in its opinion, the distribution of all or a portion of the Shares requested to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such securities by the Company then the Company will include in such registration first, the securities that the Company proposes to sell and second, the Shares requested to be included in such registration, to the extent permitted by the managing underwriter.
2. In the event of a registration pursuant to these provisions, the Company shall use its commercially reasonable best efforts to include in cause the securities Shares so registered to be registered by or qualified for sale under the securities or blue sky laws of such registration statement all Warrant Shares jurisdictions as the Investor may reasonably request; provided, however, that the Holder indicates Company shall not be required to qualify to do business in any state by reason of this section in which it is not otherwise required to qualify to do business.
3. The Company shall keep effective any registration or qualification contemplated by this section and shall from time to time amend or supplement each applicable Registration Statement, preliminary prospectus, final prospectus, application, document and communication for such period of time as shall be required to permit the Investor to complete the offer and sale of the Shares covered thereby.
4. In the event of a registration pursuant to the provisions of this section, the Company shall furnish to the Investor such reasonable number of copies of the Registration Statement and of each amendment and supplement thereto (in each case, including all exhibits), of each prospectus contained in such notice that the Holder desires to sellRegistration Statement and each supplement or amendment thereto (including each preliminary prospectus), subject all of which shall conform to the following terms requirements of the Securities Act and conditions: (a) the rules and regulations thereunder, and such other documents, as the Investor may reasonably request to facilitate the disposition of the Shares included in such registration.
5. The Company shall notify the Investors promptly when such Registration Statement has become effective or a supplement to any prospectus forming a part of such Registration Statement has been filed.
6. The Company shall advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement, or the initiation or threatening of any proceeding for that purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such registration stop order should be issued.
7. The Company shall promptly notify the Investor at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such Registration Statement, as then in effect, would include an untrue statement is of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and at the reasonable request of the Investor prepare and furnish to it such number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Shares or securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made. The Investor shall suspend all sales of the Shares upon receipt of such notice from the Company and shall not re-commence sales until they receive copies of any necessary amendment or supplement to such prospectus, which shall be delivered to the Investor within 30 days of the date of such notice from the Company.
8. If requested by the underwriter for a prospective any underwritten offeringoffering of Shares, the Holder shall agree to (i) Company and the Investor will enter into an underwriting agreementagreement with such underwriter for such offering, if required, which shall be reasonably satisfactory in customary substance and form with the underwriter or underwriters selected by to the Company, the Company’s counsel and (ii) the Investor’s counsel, and the underwriter, and such agreement shall contain such representations and warranties by the Company and the Investor and such other terms and provisions as are customarily contained in an underwriting agreement with respect to secondary distributions solely by selling stockholders, including, without limitation, indemnities substantially to the effect and to the extent provided below.
9. The Company agrees that until all the Shares have been sold under a Registration Statement or pursuant to Rule 144 promulgated under the Securities Act, it shall use its reasonable best efforts to keep current in filing all reports, statements and other materials required to be filed with the Commission to permit the Investor to sell the Holder’s securitiesShares under Rule 144.
10. The Company and its successors and assigns shall indemnify and hold harmless Investor, if the Company so requestsofficers, on the same basis directors, members, partners, agents and upon the same terms as the employees (and any other securities covered by individuals or entities with a functionally equivalent role of a person holding such registration statementtitles, other than securities proposed to be registered by the holders of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success notwithstanding a lack of such underwritten offering, the Company shall only be required to include in such offering that number of shares requested to be registered by the Holder as the underwriters believe will not jeopardize the success of such offering, (b) if the number of shares the Company is able to register is limited due to Rule 415 or other SEC shelf registration rules, the Company shall only be required to register the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder title or any other holdertitle) of Investor, each individual or entity who controls Investor (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the officers, directors, members, partners, agents and employees (and any other individuals or entities with a functionally equivalent role of a person holding such titles, notwithstanding a lack of such title or any other title) of each such controlling individual or entity (each, a “Investor Indemnified Party”), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out of or relating to (1) any untrue or alleged untrue statement of a material fact contained in a Registration Statement, any related prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any such prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (2) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder, in connection with the performance of its obligations under this Agreement, except to the extent, but only to the extent, that (i) such untrue statements or omissions are based upon information regarding Investor furnished to the Company by such party for use therein. The Company shall have exclusive control over notify Investor promptly of the preparation and filing institution, threat or assertion of any registration proceeding arising from or in connection with the transactions contemplated by this Agreement of which the Company is aware.
11. Investor and its successors and assigns shall indemnify and hold harmless the Company, the officers, directors, members, partners, agents and employees (and any other individuals or entities with a functionally equivalent role of a person holding such titles, notwithstanding a lack of such title or any other title) of the Company, each individual or entity who controls the company (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, members, partners, agents and employees (and any other individuals or entities with a functionally equivalent role of a person holding such titles, notwithstanding a lack of such title or any other title) of each such controlling individual or entity (each, a “Company Indemnified Party” with each Investor Indemnified Party and Company Indemnified Party being referred to as an “Indemnified Party”), to the fullest extent permitted by applicable law, from and against any and all Losses, as incurred, arising out of or relating to (1) any untrue or alleged untrue statement proposed of a material fact contained in a Registration Statement, any related prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be filed stated therein or necessary to make the statements therein (in the case of any such prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (2) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder, in connection with the performance of its obligations under this Agreement, but only to the extent that such untrue statements or omissions are based upon information regarding Investor furnished to the Company by such party for use therein. Investor shall notify the Company promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Agreement of which Investor is aware.
12. If the indemnification under Section 5 9(b)(11) or Section 9(b)(12), as applicable, is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then the party responsible for indemnifying the Indemnified Party (the “Indemnifying Party”) shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any amendments and supplements thereto and the withdrawal or revocation thereofother relevant equitable considerations. The Company’s obligations pursuant to this Section 5 are subject to relative fault of the Holder’s cooperation with respect to Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any such proposed registrationaction in question, including but not limited any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to the provision of such information as may reasonably be requested by the Companysupplied by, the underwriter(s) Indemnifying Party or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested therebyIndemnified Party, and the Holder’s compliance with all applicable lawsparties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The Company amount paid or payable by a party as a result of any Losses shall pay all be deemed to include any reasonable attorneys’ or other fees or expenses incurred by such party in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating any proceeding to the Holder’s registered securities included extent such party would have been indemnified for such fees or expenses if the indemnification provided for in any registration hereunderSection 9(b)(11) or Section 9(b)(12), and all fees and expenses for counsel to the Holderas applicable, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. Notwithstanding anything to the contrary set forth herein, the Holder hereby expressly agrees and acknowledges that any registration rights of the Holder hereunder are subordinate to those of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued was available to such holders party in connection accordance with its terms. It is agreed that it would not be just and equitable if contribution pursuant to Section 9(b)(12) were determined by pro rata allocation or by any other method of allocation that does not take into account the purchase and sale of equitable considerations referred to in the Preferred Stockimmediately preceding sentence.
Appears in 1 contract
Piggyback Registration Rights. (i) If, at any time during the three-year period commencing on after the date hereofof this Subscription Agreement and expiring five (5) years thereafter, the Company proposes or is required to file a registration statement registering any shares or statements under the Securities Act for the public sale of the Company's Class A Common Stock or securities convertible into or exchangeable Stock, no par value (the "Common Stock"), for Common Stock cash (other than on in connection with a merger or pursuant to Form S-4 X-0, Xxxx X-0 or Form S-8comparable registration statement) it will give written notice, or such other forms as the U.S. Securities and Exchange Commission may hereafter promulgate for registration of securities in transactions for which Form S-4 or Form S-8 may be used as of the date hereof), whether or not for its own account, the Company shall give at least 20 thirty (30) days prior written notice to the Holder filing of each such registration statement, to the undersigned of its intention to do so. Upon written request by If the Holder undersigned notifies the Company in writing within 10 ten (10) business days after receipt of any such noticenotice of its desire to include the shares of the Common Stock, which may be issued upon conversion of the Shares (the "Common Shares") in such proposed registration statement, the Company shall use its commercially reasonable efforts afford the undersigned the opportunity to include have the Common Shares registered under such registration statement; provided, however, that in the securities to be registered by such registration statement all Warrant Shares that the Holder indicates in such notice that the Holder desires to sell, subject to the following terms and conditions: (a) if such registration statement is for a prospective case of an underwritten offering, the Holder shall agree to (i) enter into an underwriting agreement, if required, in customary form with the underwriter or underwriters selected by the Company, and (ii) sell the Holder’s securities, if the Company so requests, on notifies the same basis and upon undersigned in writing that the same terms as managing underwriter of such offering has notified the other securities covered by such Company that the inclusion in the registration statement, other than securities proposed to be registered by the holders statement of any portion of the Preferred Stock (as defined below), and provided that if the number of shares requested by the Holder to be registered in such offering exceeds the amount of shares which the underwriters reasonably believe is compatible with the success of Common Shares would have an adverse effect on such underwritten offering, then the Company shall only managing underwriter may limit the number of Common Shares to be required to include included in such registration statement only to the extent necessary to avoid such adverse effect; provided, further, however, that in the event any shares of Common Stock issued pursuant to any of the securities issued in the Company's initial public offering that ("IPO Securities") are to be included in such underwritten offering, and the managing underwriter shall have determined to limit the number of shares Common Shares or IPO Securities to be so included, then such limitation shall be applied to the Common Shares and the IPO Securities, pro rata based on the number of Common Shares and IPO Securities requested to be registered included in such underwritten offering; and provided, further, however, that in the event securities of the Company, other than IPO Securities, held by any person or entity other than the Holder as Company or the underwriters believe will not jeopardize the success of undersigned ("Third Party Securities") are to be included in such underwritten offering, (b) if and the managing underwriter shall have determined to limit the number of shares Common Stock, IPO Securities or Third Party Securities to be so included, then such limitation shall be applied to the Company Common Shares, the IPO Securities and the Third Party Securities, based on the number of Common Shares, IPO Securities and Third Party Securities requested to be included in such underwritten offering so that the amount of Third Party Securities are reduced by a percentage which is able to register is limited due to Rule 415 or other SEC shelf registration rulestwice as great as the percentage which the Common Shares and the IPO Securities are reduced. Notwithstanding the provisions of this Section VI(a)(i), the Company shall only be required to register have the Warrant Shares the Holder elects to include on a pari passu basis with the other shares being registered, other than right at any shares proposed to be registered by the holders of the Preferred Stock; and (c) the Company may withdraw any such registration statement before time after it becomes effective or postpone the offering of securities contemplated by such registration statement without any obligation to the Holder or any other holder. The Company shall have exclusive control over the preparation and filing of any registration statement proposed to be filed under this Section 5 as well as any amendments and supplements thereto and the withdrawal or revocation thereof. The Company’s obligations given written notice pursuant to this Section 5 are VI(a)(i) (irrespective of whether a written request for inclusion of any such securities shall have been made) to elect not to file any such proposed registration statements or to withdraw the same after the filing but prior to the effective date thereof.
(ii) Following the effective date of a registration statement filed pursuant to Section VI(a)(i), the Company shall, upon the written request of the undersigned, forthwith supply such reasonable number of copies of the registration statement, prospectus and other documents necessary or incidental to the registration as shall be reasonably requested by the undersigned to permit the undersigned to make a public distribution of the Common Shares. The Company will use its reasonable efforts to qualify the Common Shares for sale in such states as the undersigned shall reasonably request, provided that no such qualification will be required in any jurisdiction where, solely as a result thereof, the Company would be subject to general service of process or to taxation or qualification as a foreign corporation doing business in such jurisdiction. The obligations of the Holder’s cooperation Company hereunder with respect to any such proposed registration, including but not limited the Common Shares are expressly conditioned on the undersigned furnishing to the provision of Company such appropriate information concerning the undersigned and the Common Shares as the Company may reasonably request.
(iii) The Company shall bear the entire cost and expense of the registration of the Common Shares pursuant to Section VI(a)(i); provided, however, that the undersigned shall be requested solely responsible for the fees of any counsel retained by the undersigned in connection with such registration and any transfer taxes or underwriting discounts, commissions or fees applicable to the Common Shares sold by the undersigned pursuant thereto.
(iv) Neither the filing of a registration statement by the Company pursuant to this Section VI(a) nor the making of any request for prospectuses by the undersigned shall impose upon the undersigned any obligation to sell the Common Shares.
(v) The undersigned, upon receipt of notice from the Company that an event has occurred which requires a post-effective amendment to a registration statement or a supplement to a prospectus included therein, shall promptly discontinue the sale of the Common Shares until the undersigned receives a copy of a supplemented or amended prospectus from the Company, which the underwriter(s) or any other authorized parties and the execution and delivery of such agreements (including indemnification and contribution agreements), instruments and documents as may be reasonably requested thereby, and the Holder’s compliance with all applicable laws. The Company shall pay all reasonable expenses incurred in connection with the registration contemplated hereby, including without limitation registration and filing fees, printing expenses, and fees and expenses of counsel for the Company. Notwithstanding the foregoing, underwriting discounts and commissions and transfer taxes relating to the Holder’s registered securities included in any registration hereunder, and all fees and expenses for counsel to the Holder, shall be borne and paid by the Holder. The registration rights and other rights granted in this Section 5 are not assignable, in whole or in part, without the prior written consent of the Company. provide as soon as practicable after such notice.
(vi) Notwithstanding anything else to the contrary set forth hereincontained in this Subscription Agreement, if the Holder hereby expressly agrees and acknowledges that undersigned requests to have any registration rights of the Holder hereunder Common Shares registered under the Securities Act pursuant to this Section VI(a), and if such Common Shares are subordinate to those so registered, then this Section VI(a) shall be of the holders of the Company’s 10% (PIK) Series A Preferred Stock and the Company’s 10% (PIK) Series B Preferred Stock (together, the “Preferred Stock”) and warrants issued to such holders in connection with the purchase and sale of the Preferred Stockno further force or effect.
Appears in 1 contract
