Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller. (b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority: (i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or (ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers. (c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company. (d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 5 contracts
Samples: Shareholder Agreement (Walgreens Boots Alliance, Inc.), Shareholder Agreement (Walgreens Boots Alliance, Inc.), Shareholder Agreement (Amerisourcebergen Corp)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, at any time after the Restricted Period whenever the Company proposes to register (including for this purpose a Registration effected by the Company for shareholders other than Shareholders) any Company Common Stock (or any other of its securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) a Registration under Section 4.1 hereof, (ii) a Registration of securities solely relating to an offering and sale pursuant to any employee stock plan or other employee benefit plan arrangement, including any registration on Form S-4 S-8 (or any successor form thereto), or (iiiii) a Registration of securities issued in an acquisition or business combination including any Registration on Form S-8 S-4 (or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt at least 20 days’ written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price Company’s intention to effect such a Registration to all Shareholders of such shares record of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company Registrable Securities and shall include in each the Registration, subject to any agreement among the Shareholders to be included in such Piggyback Registration Registration, all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) 10 days after such the receipt of the Company’s notice.
(a) The Registration Expenses of the Shareholders shall be paid by the Company in all Piggyback Notice is received by such Piggyback SellerRegistrations.
(b) If, in connection with If a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) is a primary Registration on behalf of the Company that, and the investment banker(s) or manager(s) of such offering advise the Company in its opinion, writing that in their opinion the inclusion number of all the securities sought requested to be included in such Piggyback Registration by (i) exceeds the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered number which can be sold in an orderly manner in such Piggyback Registration pursuant offering and/or that the number of securities proposed to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) be included in such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, offering would adversely affect the success thereofprice per share of the Common Stock, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the securities the Company as the Companyproposes to sell, in its reasonable judgment, shall have determined, and (Bii) second, the Registrable Securities of Piggyback Sellers, requested to be included in the Registration pro rata on among the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata Shareholders on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller or as such Shareholders may otherwise agree, and (iii) third, other securities requested to be included in the Registration pro rata in proportion to among the number holders of such other securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed shares requested to be sold registered by each such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellersholder or as such holders may otherwise agree.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for If a Piggyback Registration is a secondary Registration on behalf of holders of the Company’s accountsecurities other than Registrable Securities and the investment banker(s) or manager(s) of such offering advise the Company in writing that, in their opinion, the number of securities requested to be included in the Registration exceeds the number which can be sold in an orderly manner in such offering and/or that the number of securities proposed to be included in such offering would adversely affect the price per share of the Common Stock, the Company shall not include in the Registration (i) first, the securities requested to be required included therein by the holders requesting such Registration pro rata among the holders of such other securities on the basis of the number of shares requested to include be registered by each such holder or as such holders may otherwise agree, (ii) second, the Registrable Securities requested to be included in such Registration pro rata among the Shareholders on the basis of a Piggyback Seller the number of shares proposed to be registered by each or as such Shareholders may otherwise agree, and (iii) third, other securities requested to be included in the Underwritten Offering unless Registration pro rata among the holders of such Piggyback Seller accepts other securities on the terms basis of the underwriting number of shares requested to be registered by each such holder or as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Companysuch holders may otherwise agree.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in In connection with such a Piggyback Registration is declared effectiveRegistration, the Company shall determine for any reason not select the investment banker(s) and manager(s) to register such shares of Company Common Stock (or other securities, as applicable), administer the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, thatoffering, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1applicable.
Appears in 4 contracts
Samples: Shareholders Agreement (US BioEnergy CORP), Shareholders Agreement (US BioEnergy CORP), Shareholders Agreement (US BioEnergy CORP)
Piggyback Registrations. (a) From and If at any time or times after the date hereof, subject to the terms and conditions hereof, whenever hereof the Company proposes shall seek to register any Company shares of its Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by for sale to the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether public for its own account or for on the account of othersothers (except with respect to registration statements on Form X-0, X-0 or another form not available for registering the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior Registrable Securities for sale to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(bpublic), the Company shall include in each will promptly give written notice thereof to all Holders. If within twenty (20) days after their receipt of such Piggyback Registration notice one or more Holders request the inclusion of some or all of the Registrable Securities held owned by Demand Shareholders (a “Piggyback Seller”) with respect to which them in such registration, the Company has received written requests (which written requests shall specify will use its best efforts to effect the registration under the Securities Act of such Registrable Securities. In the case of the registration of shares of capital stock by the Company in connection with any underwritten public offering, if the underwriter(s) determines that marketing factors require a limitation on the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) Ifoffered, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought subject to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s accountsentence, the Company shall not be required to include the register Registrable Securities of a Piggyback Seller the Holders in excess of the amount, if any, of shares of the capital stock which the principal underwriter of such underwritten offering shall in good faith agree to include in such offering in addition to any amount to be registered for the account of the Company. In the case of the Company’s initial public offering of Common Stock, if any limitation of the number of shares of Registrable Securities to be registered by the Holders is required pursuant to this Section 2, the number of shares to be excluded shall be determined in the Underwritten Offering unless following sequence: (i) first, securities held by any Persons not having any contractual, incidental “piggyback” registration rights, (ii) second, securities held by any Persons (other than the Holders) having contractual, incidental “piggyback” rights pursuant to an agreement which is not this Agreement, (iii) third, Registrable Securities (other than the LRG Piggyback Shares) sought to be included by the Holders (other than the LRG Holders) as determined on a pro rata basis (based upon the respective holdings of Registrable Securities by such Holders) and (iv) fourth, the LRG Piggyback Seller accepts Shares. In the terms case of any registered offering other than the Company’s initial public offering of Common Stock, if any limitation of the underwriting as agreed upon between number of shares of Registrable Securities to be registered by the Company and Holders is required pursuant to this Section 2, the lead managing underwriter(s), which number of shares to be excluded shall be selected determined in the following sequence: (i) first, securities held by any Persons not having any contractual, incidental “piggyback” registration rights, (ii) second, securities held by any Persons (other than the Holders) having contractual, incidental “piggyback” rights pursuant to an agreement which is not this Agreement and (iii) third, Registrable Securities sought to be included by the Company.
Holders as determined on a pro rata basis (d) If, at any time after giving written notice based upon the respective holdings of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with by such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1Holders).
Appears in 4 contracts
Samples: Right of Last Refusal Agreement (GlassHouse Technologies Inc), Series F Preferred Stock Purchase Agreement (GlassHouse Technologies Inc), Series F Preferred Stock Purchase Agreement (GlassHouse Technologies Inc)
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever If the Company proposes or is required (pursuant to Section 2.1 or otherwise) to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of othersany other shareholder under the Securities Act (other than pursuant to registrations on Form S-4 or Form S-8 or any similar successor forms thereto), the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten the “Piggyback Notice”) of its intention to do so to each of the Holders of record of Registrable Securities at least five (105) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto)under the Securities Act. Such notice Piggyback rights included in this Section 2.2(a) include the right to piggyback on underwritten offerings or underwritten Block Trades by other shareholders of the Company whose shares may be registered on a reoffer/resale prospectus filed pursuant to a Form S-8. Upon the written request of any such Holder, made within five (a “5) days following the receipt of any such Piggyback Notice”) Notice (which request shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the maximum number of Registrable Securities requested intended to be disposed of by such Piggyback SellerHolder and the intended method of distribution thereof), the Company shall, subject to Sections 2.2(c), 2.2(f), 2.3 and 2.6 hereof, use its reasonable best efforts to cause all such Registrable Securities, the Holders of which have so requested the registration thereof, to be registered under the Securities Act with the securities which the Company at the time proposes to register to permit the sale or other disposition by the Holders (in accordance with the intended method of distribution thereof) of the Registrable Securities to be so registered, including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the registration statement filed by the Company or the prospectus related thereto. There is no limitation on the number of such piggyback registrations pursuant to the preceding sentence which the Company is obligated to effect. No registration of Registrable Securities effected under this Section 2.2(a) shall relieve the Company of its obligations to effect Demand Registrations under Section 2.1 hereof. If the Company proposes or is required (pursuant to Section 2.1 or otherwise) to sell pursuant to an underwritten offering Registrable Securities available for sale pursuant to a Shelf Registration Statement (a “Company Shelf Underwriting”), the Company shall, as promptly as practicable, give written notice of such Company Shelf Underwriting (a “Company Shelf Notice”) to each Holder of Shelf Registrable Securities. In addition to any equity securities that the Company proposes to sell for its own account in such Company Shelf Underwriting, the Company shall, subject to Sections 2.3 and 2.6, include in such Company Shelf Underwriting the Registrable Securities of any Holder which shall have made a written request to the Company for inclusion therein within ten in such Company Shelf Underwriting (10) days after such Piggyback Notice is received which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Piggyback SellerHolder) within five (5) Business Days after the receipt of the Company Shelf Notice. Notwithstanding the foregoing, (x) if the Company wishes to engage in an Underwritten Block Trade pursuant to a Shelf Registration Statement (a “Company Underwritten Block Trade”), then notwithstanding the foregoing time periods, the Company only needs to notify the Shareholder of the Company Underwritten Block Trade two (2) Business Days prior to the day such Company Underwritten Block Trade is to commence and the Company shall notify the Shareholder and such Shareholder must elect whether or not to participate by the next Business Day (i.e., one (1) Business Day prior to the date such Underwritten Block Trade is to commence), and the Company shall as expeditiously as possible use its commercially reasonable efforts to facilitate such Company Underwritten Block Trade (which may close as early as two (2) Business Days after the date it commences), and (y) if a Demand Party wishes to engage in an Underwritten Block Trade pursuant to a Shelf Registration Statement, then the provisions set forth in Section 2.1(e) shall apply to such Underwritten Block Trade. In the event the Company or a Demand Party requests a Company Underwritten Block Trade or an Underwritten Block Trade, as applicable, notwithstanding anything to the contrary in Section 2.1 or in this Section 2.2, any holder of Shares who does not constitute a Holder shall have no right to notice of or to participate in such Company Underwritten Block Trade or Underwritten Block Trade, as applicable.
(b) IfThe Company, subject to Sections 2.3 and 2.6 and the final sentence of Section 2.2(a), may elect to include in connection with a Piggyback Registration that involves an Underwritten Offeringany registration statement and offering pursuant to demand registration rights by any Person or otherwise, the lead managing underwriter(s(i) advise(s) authorized but unissued Shares or Shares held by the Company that, in its opinion, the inclusion of all the securities sought as treasury shares and (ii) any other Shares which are requested to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration registration pursuant to the exercise of piggyback registration rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold granted by the Company as on or after the Companydate hereof and which are not inconsistent with the rights granted in, in its reasonable judgmentor otherwise conflict with the terms of, shall have determinedthis Agreement (“Additional Piggyback Rights”); provided, (B) secondhowever, Registrable Securities of Piggyback Sellersthat, pro rata on the basis of the number of Registrable Securities proposed with respect to be sold by such Piggyback Sellersany underwritten offering, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) firstincluding a block trade, such number of shares of Company Common Stock (or other securities, as applicable) sought to inclusion shall be registered by each Other Demanding Seller pro rata in proportion permitted only to the number of securities sought to be registered by all such Other Demanding Sellersextent that it is pursuant to, (B) secondand subject to, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s)agreement or arrangements, which shall be selected if any, entered into by the CompanyInitiating Holders or the Majority Participating Holders in such underwritten offering.
(dc) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 a Piggyback Notice and prior to the time effective date of the registration statement filed in connection with such Piggyback Registration is declared effectiveregistration, (i) any Initiating Holder determines for any reason not to proceed with the proposed registration, the Company may at its election give written notice of such determination to each Holder of record of Registrable Securities and thereupon will be relieved of its obligation to register any Registrable Securities in connection with such registration and (ii) other than in connection with a Demand Registration, the Company shall determine for any reason not to register or to delay registration of such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to all Holders of record of Registrable Securities and (x) in the Piggyback Sellers within five (5) Business Days thereof and thereupon case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registrationregistration, without prejudice, however, to the rights of Holders under Section 2.1, and (y) in the case of a determination to delay such registration of its equity securities, shall be permitted to delay the registration of such Registrable Securities for the same period as the delay in registering such other equity securities.
(d) Any Holder shall have the right to withdraw its request for inclusion of its Registrable Securities in any registration statement pursuant to this Section 2.2 by giving written notice to the Company of its request to withdraw; provided, thathowever, if permitted pursuant that such request must be made in writing prior to Section 4.1the earlier of the execution of the underwriting agreement or the execution of the custody agreement with respect to such registration or as otherwise required by the underwriters.
(e) Notwithstanding anything contained herein to the contrary, the Demand Shareholders may continue Company shall, at the request of any Holder; file any prospectus supplement or post-effective amendments, or include in the initial registration as a Demand Registration pursuant to the terms of Section 4.1statement any disclosure or language, or include in any prospectus supplement or post-effective amendment any disclosure or language, and otherwise take any action, deemed necessary or advisable by such Holder.
Appears in 4 contracts
Samples: Registration Rights Agreement (KLX Energy Services Holdings, Inc.), Registration Rights Agreement (KLX Energy Services Holdings, Inc.), Registration Rights Agreement (KLX Energy Services Holdings, Inc.)
Piggyback Registrations. (a) From If, other than pursuant to Section 2.1 and after the date hereofSection 2.2, subject to the terms and conditions hereof, whenever the Company proposes or is required to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) file a registration statement under the Securities Act (other than a registration by the Company (i) on Form S-4 with respect to an offering of Common Stock or any successor form thereto, (ii) on Form S-8 other of the Company’s equity securities or securities convertible into or exchangeable or exercisable for any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”)of the Company’s equity securities, whether for sale for its own account or for the account of othersanother Person (other than a registration statement (i) on Form S-0, Xxxx X-0 or any successor forms thereto or (ii) filed solely in connection with any employee benefit or dividend reinvestment plan), then the Company shall give all Demand Shareholders prompt written notice thereof of such proposed filing at least 30 days before the anticipated filing date (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) to the Holders. The Piggyback Notice shall specify offer the Holder the opportunity to include in such registration statement the number of shares Registrable Securities (for purposes of Company Common Stock (or other securitiesthis Section 2.3, “Registrable Securities” shall be deemed to mean solely securities of the same type and class as applicable) those proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate offered by the Company of the proposed minimum offering price of such shares of Company Common Stock for its own account) as they may request (or other securities, as applicablea “Piggyback Registration”), in each case to the extent then known. Subject to Section 4.2(b)2.3(b) hereof, the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests for inclusion therein within 10 days after notice has been given to the Holders. The Holders shall be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration at any time at least 5 Business Days prior to the effective date of the Registration Statement relating to such Piggyback Registration.
(which written requests b) If any of the securities to be registered pursuant to the registration giving rise to the Holders’ rights under this Section 2.3 are to be sold in an underwritten offering, the Holders shall specify be permitted to include all Registrable Securities requested to be included in such registration in such offering on the number same terms and conditions as any other shares of Capital Stock, if any, of the Company included therein; provided, however, that if such offering involves a firm commitment underwritten offering and the managing underwriter(s) of such underwritten offering advise the Company in writing that it is their good faith opinion that the total amount of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) Ifso included, in connection together with a Piggyback Registration all Other Securities that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company thatand any other Persons having rights to participate in such registration intend to include in such offering, in its opinionexceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the inclusion of Registrable Securities to be so included together with all the securities sought to Other Securities, then there shall be included in such Piggyback Registration by (i) firm commitment underwritten offering the Company, (ii) other Persons who have sought to have shares number or dollar amount of Company Common Stock registered in Registrable Securities and such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include Securities that in the registration statement applicable to opinion of such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without so adversely affecting such an effectoffering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows and in the following order of priorityfollows:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be all Other Securities being sold by the Company as the Company, in its reasonable judgment, shall Stockholders or by any Person (other than a Holder) exercising a contractual right to demand registration until all such Other Securities have determined, been allocated for inclusion;
(Bii) second, all Registrable Securities of Piggyback Sellersrequested to be included by the Holders and any Other Securities proposed to be included by the Stockholders (other than a Stockholder selling Other Securities under (i)Section 2.3(b)(i)), pro rata (if applicable), based on the basis of the number of Registrable Securities proposed to be sold Beneficially Owned by each such Piggyback Sellers, Holder and any Other Securities Beneficially Owned by each such Stockholder until all such Registrable Securities have been allocated for inclusion; and
(Ciii) third, shares among any other holders of Company Common Stock sought to be registered by Other Demanding SellersSecurities requesting such registration, pro rata rata, based on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered Securities Beneficially Owned by each such holder of Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed SellersSecurities.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 3 contracts
Samples: Registration Rights Agreement (Colfax CORP), Registration Rights Agreement (Colfax CORP), Registration Rights Agreement (Colfax CORP)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on a registration statement on Form S-4 or any successor form thereto, (ii) a registration statement on Form S-8 or any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “"Piggyback Registration”"), whether for its own account or for the account of others, the Company shall give all Demand Shareholders the Piggyback Stockholders prompt written notice thereof (but not less than ten (10) Business Days business days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “"Piggyback Notice”") shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) underwriter or underwriters (if anyany and if known) and a good faith estimate by the Company of the proposed minimum offering price of such shares equity securities. Upon the written request of Company Common Stock (or other securities, as applicable), in each case to any Persons that on the extent then known. Subject to Section 4.2(b), date of the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders Notice constitute a Piggyback Stockholder (a “"Piggyback Seller”") with respect to which the Company has received written requests (which written requests request shall specify the number of Registrable Securities requested then presently intended to be disposed of by such Piggyback Seller) for inclusion therein given within ten (10) days after such Piggyback Notice is received by such Piggyback Seller, the Company, subject to the terms and conditions of this Agreement, shall use its reasonable best efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company's equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, a nationally recognized independent investment bank selected by FIG Advisors or any of the lead managing underwriter(sPermitted Transferees of either of the Fortress Stockholders (to the extent a Stockholder hereunder), reasonably acceptable to the Company, and whose fees and expenses shall be borne solely by the Company) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “"piggyback” " or other incidental or participation registration rights) such registration (such Persons being “"Other Demanding Sellers”"), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “"Other Proposed Sellers”"), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s 's own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock securities sought to be registered by Other Demanding SellersSellers and Additional Shares of Additional Sellers (if any), pro rata on the basis of the number of shares of Company Common Stock proposed to be sold held by such Other Demanding Piggyback Sellers and Additional Sellers and (DC) fourththird, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s 's own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller Seller, the Piggyback Sellers and the Additional Sellers (if any), pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, Piggyback Sellers and Additional Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold as determined by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 5.2 for the Company’s 's account, the Company shall not be required to include the a holder's Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any such underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 5.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the each Piggyback Sellers within five (5) Business Days thereof Stockholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders that Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.15.1.
Appears in 3 contracts
Samples: Stockholders Agreement (Fortress Investment Group LLC), Stockholders Agreement (Brookdale Senior Living Inc.), Stockholders Agreement (Brookdale Senior Living Inc.)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement pursuant to Section 2.3, or (iv) pursuant to Section 4.12.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b2.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) good faith opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (iw) the Company, (iix) the Piggyback Sellers, (y) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (ivz) any other proposed sellers of shares of Company Common Stock (including pursuant to so-called “piggyback” or other incidental or participation registration rights) (such Persons being “Other Proposed Sellers”), as the case may be, would materially and adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 2.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 2.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.12.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.12.1.
Appears in 3 contracts
Samples: Registration Rights Agreement (Lawson Products Inc/New/De/), Merger Agreement (Lawson Products Inc/New/De/), Merger Agreement (Lawson Products Inc/New/De/)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on a registration statement on Form S-4 or any successor form thereto, (ii) a registration statement on Form S-8 or any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders the Stockholders prompt written notice thereof (but not less than ten (10) Business Days 5 days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) underwriter or underwriters (if anyany and if known). Upon the written request (i) and if a good faith estimate Piggyback Notice is required by this paragraph, of any Person that on the Company of the proposed minimum offering price date of such shares of Company Common Stock (or other securitiesPiggyback Notice is a Stockholder, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein given within ten (10) 5 days after such Piggyback Notice is received by such Person, or (ii) if no Piggyback Notice is required by this paragraph, of any Person that on the date of approval by the Board of the filing of such Piggyback Registration is a Stockholder, within 5 days of such Board approval (any such Persons as described in (i) and (ii) above, each, a “Piggyback Seller”) (which written request shall specify the number of Registrable Securities then presently intended to be disposed of by such Piggyback Seller), the Company, subject to the terms and conditions of this Agreement, shall use its commercially reasonable efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, the lead managing underwriter(s) advise(s) a nationally recognized independent investment bank selected by the Company advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter or investment bank can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, subject to adjustment as provided in Section 3.3 hereof, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock Sellers and securities sought to be registered by Other Demanding SellersSellers (if any), pro rata on the basis of the number of shares of Company Common Stock proposed to be sold held by such Piggyback Sellers and Other Demanding Sellers and (DC) fourththird, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, subject to adjustment as provided in Section 3.3 hereof, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered shares of Common Stock held by all such Other Demanding Sellers, Sellers and Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company as determined by the Company and (D) fourth, other shares of Company Common Stock proposed with such priorities among them as may from time to time be sold determined or agreed to by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 3.2 for the Company’s account, the Company shall not be required to include the a holder’s Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 3.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof each Stockholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders that Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.13.1.
Appears in 3 contracts
Samples: Registration Rights Agreement (Fuller Max L), Registration Rights Agreement (Us Xpress Enterprises Inc), Registration Rights Agreement (Us Xpress Enterprises Inc)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (ix) on a registration statement on Form S-4 or any successor form thereto, (iiy) on a registration statement on Form S-8 (or, in any of the cases of (x) or (y), on any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1)) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders the Stockholders (excluding Fortress Affiliate Stockholders which have not signed a joinder as contemplated by Section 2.1) prompt written notice thereof (but not less than ten (10) Business Days five days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) underwriter or underwriters (if any) any and a good faith estimate by if known). Upon the Company written request of any Person that on the proposed minimum offering price date of such shares of Company Common Stock (or other securitiesPiggyback Notice is a Stockholder, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein given within ten (10) five days after such Piggyback Notice is received by such Person (any such Persons, a “Piggyback Seller”) (which written request shall specify the number of Registrable Securities then presently intended to be disposed of by such Piggyback Seller), the Company, subject to the terms and conditions of this Agreement, shall use its commercially reasonable efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, the lead managing underwriter(sa nationally recognized investment bank engaged in connection with such Demand Registration) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter or investment bank can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock Sellers and securities sought to be registered by Other Demanding SellersSellers (if any), pro rata on the basis of the number of shares of Company Common Stock proposed to be sold held by such Piggyback Sellers and Other Demanding Sellers and (DC) fourththird, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered shares of Common Stock held by all such Other Demanding Sellers, Sellers and Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company as determined by the Company and (D) fourth, other shares of Company Common Stock proposed with such priorities among them as may from time to time be sold determined or agreed to by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the a holder’s Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any applicable underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof each Stockholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders that Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 3 contracts
Samples: Shareholder Agreement (Intrawest Resorts Holdings, Inc.), Shareholder Agreement (Intrawest Resorts Holdings, Inc.), Shareholder Agreement (Springleaf Holdings, Inc.)
Piggyback Registrations. (a) From and after the date hereofIf, subject other than pursuant to the terms and conditions hereofSection 2.1 or Section 2.2, whenever the Company proposes or is required to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) file a registration statement under the Securities Act with respect to an offering of Common Shares, whether or not for sale for its own account (other than a registration by the Company statement (i) on Form S-4 X-0, Xxxx X-0 or any successor form forms thereto, (ii) on Form S-8 filed solely in connection with any employee benefit or any successor form theretodividend reinvestment plan, or (iii) on so long as a Shelf Registration Statement or (iv) is effective and available pursuant to Section 4.12.2 hereof, filed solely in connection with the issuance or resale of Common Shares issuable upon conversion, exercise or exchange of any securities of the Company or any of its Subsidiaries, where such convertible, exercisable or exchangeable securities were issued in, or as part of, a financing transaction), in a manner that would permit registration of Registrable Securities for sale to the public under the Securities Act, then the Company shall give prompt written notice of such proposed filing at least 30 days before the anticipated filing date (the “Piggyback Notice”) to the Holders. The Piggyback Notice shall offer the Holders the opportunity to include in such registration statement the number of Registrable Securities as they may request (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b)2.3(b) hereof, the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) 15 days after notice has been given to the Holders, to permit the distribution of such Piggyback Notice is received Registrable Securities in accordance with the methods of distribution elected by such Piggyback Seller.
(b) If, in connection with Holders. The Holders shall be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration that involves an Underwritten Offering, at any time at least two Business Days prior to the lead managing underwriter(s) advise(s) effective date of the Registration Statement relating to such Piggyback Registration. The Company that, shall use its reasonable best efforts to maintain the effectiveness of the Registration Statement for a Piggyback Registration for a period of at least 180 days after the effective date thereof or such shorter period in its opinion, the inclusion of which all the securities sought to be Registrable Securities included in such Registration Statement have actually been sold. No Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellerscount towards registrations required under Section 2.1.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 3 contracts
Samples: Master Commutation, Release and Restructuring Agreement (Security Capital Assurance LTD), Registration Rights Agreement (Syncora Holdings LTD), Master Commutation, Release and Restructuring Agreement (Xl Capital LTD)
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving the date hereof and before October 14, 2010 the Subscriber owns any of the Registrable Securities, the Company proposes to prepare and file with the Securities and Exchange Commission one or more registration statements covering equity or debt securities of the Company with a value exceeding $1,000,000 (in any such case, other than on Form S-8 or S-4 or successor forms), it will give Subscriber at least 15 days' prior written notice via overnight courier or certified mail (the "Notice"). Upon written request of its intention to register Subscriber, made within 10 days after mailing of the Notice, that the Company include any shares of Company Common Stock (or other securities, as applicable) as set forth the Subscriber's Registrable Securities in this Section 4.2 and prior to the time the proposed registration statement filed in connection with such Piggyback Registration is declared effectivestatement, the Company shall determine for use reasonable efforts to effect the registration under the Act, and any reason not underwriting involved therein, of the Registrable Securities which it has been so requested to register but only to the extent that such shares inclusion does not diminish the number of Company securities included by a holder of Common Stock who has demanded such registration (the "Piggyback Registration"); provided, however, that if in the written opinion of the Company's managing underwriter, if any, for such offering, the inclusion of all or other securitiesa portion of the Registrable Securities requested to be registered, as applicable)when added to the securities being registered by the Company, will exceed the maximum amount of the Company's securities which can be marketed (i) at a price reasonably related to their then current market value, or (ii) without otherwise materially adversely affecting the entire offering, then the Company may exclude from such offering all or a portion of the Registrable Securities which it has been requested to register. The Company shall bear all of the expense of the Piggyback Registration, except for the pro rata portion of brokerage or underwriters' discounts or commissions relating to the shares sold on behalf of the Subscriber. All of Subscriber's Piggyback Registration rights under this Agreement shall expire on October 14, 2010. Notwithstanding anything to the contrary herein, the Company may, shall have the right at its election, give any and all times after it shall have given written notice of pursuant to this Section to elect not to file any such determination proposed registration statement, or to withdraw the same after the filing but prior to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1effective date thereof.
Appears in 3 contracts
Samples: Subscription Agreement (Superconductive Components Inc), Subscription Agreement (Superconductive Components Inc), Subscription Agreement (Superconductive Components Inc)
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever If the Company at any time proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 any Stock or any successor form thereto, (ii) on Form S-8 security convertible into or any successor form thereto, (iii) on a Shelf Registration Statement exchangeable or (iv) pursuant to Section 4.1) (a “Piggyback Registration”)exercisable for Stock, whether or not for sale for its own account or and other than pursuant to a Demand Registration (it being understood that an Investor may include its Registrable Stock in a registration effected pursuant to a Demand Registration in accordance with Section 6(a)), on a form and in a manner which would permit registration of the Registrable Stock held by an Investor for sale to the account of otherspublic under the Securities Act, the Company shall give all Demand Shareholders prompt written notice thereof of the proposed registration to each Investor not later than thirty (but not less than 30) days prior to the filing thereof. Each Investor shall have the right to request that all or any part of its Registrable Stock be included in such registration. Each Investor can make such a request by giving written notice to the Company within ten (10) Business Days prior to after the filing by receipt of the Company’s notice of the proposed registration; provided, however, that if the registration is an underwritten registration and there is an Underwriter Cutback, the Company with the Commission of any will include in such registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify only the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company securities that, in its opinion, the inclusion reasonable opinion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” underwriter or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) underwriters can be sold without such an effecthaving a material adverse effect on the success of the offering, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) follows: first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the securities which the Company as the Company, in its reasonable judgment, shall have determined, (B) proposes to sell; second, the Registrable Securities Stock of Piggyback Sellerssuch Investors, pro rata among all such Investors on the basis of the number relative percentage of Registrable Securities proposed Stock then held by all Investors who have requested that Registrable Stock owned by them be so included (it being further agreed and understood, however, that such underwriters shall have the right to be sold by such Piggyback Sellers, (C) eliminate entirely the participation of the Investors); and third, shares the comparable securities of Company Common Stock sought any additional holders of the Company’s securities (including any such securities held by current or former officers or employees of or consultants to be registered by Other Demanding Sellersthe Company), pro rata among all such holders on the basis of the number relative percentage of shares such securities then held by all such holders who have requested that securities owned by them be so included. For purposes of Company Common Stock proposed any Underwriter Cutback pursuant to be sold by such Other Demanding Sellers and (D) fourththis Section 6(b), other shares of Company Common all Registrable Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Investor shall also include any Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by the partners, retired partners, shareholders or Affiliates of such Investor, or the estates and family members of any Other Proposed Sellers.
(c) For claritysuch Investor or such partners or retired partners, any trusts for the benefit of any of the foregoing Persons and, at the election of such Investor or such partners, retired partners, trusts or Affiliates, any Charitable Organization to which any of the foregoing shall have contributed Registrable Stock prior to the execution of the underwriting agreement in connection with such underwritten registration, and such Investor and other Persons shall be deemed to be a single selling Investor, and any Underwritten Offering under pro rata reduction with respect to such Investor shall be based upon the aggregate amount of securities proposed to be sold by all entities and individuals included in such selling Investor, as defined in this Section 4.2 sentence. Registrable Stock proposed to be registered and sold pursuant to an underwritten offering for the Company’s accountaccount of any Investor shall be sold to the prospective underwriters, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts on the terms and subject to the conditions of one or more underwriting agreements negotiated between the underwriting as agreed upon between holders of Registrable Stock to which such Registration Statement relates, the Company and the prospective underwriters. Any Investor who holds Registrable Stock being registered in any offering shall have the right to receive a copy of the form of underwriting agreement and shall have an opportunity to hold discussions with the lead managing underwriter(s), which shall be selected by underwriter of the Company.
(d) If, terms of such underwriting agreement. The Company may withdraw any Registration Statement at any time after giving written notice before it becomes effective, or postpone or terminate the offering of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior without obligation or liability to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1Investor.
Appears in 3 contracts
Samples: Stockholders Agreement (Amc Entertainment Inc), Stockholders Agreement (Amc Entertainment Inc), Stockholders Agreement (Marquee Holdings Inc.)
Piggyback Registrations. (a) From Subject to the limitations set forth in this Agreement (including ARTICLE II), from and after the date hereoffirst anniversary of the Effective Time, subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) 4.1 (a “Piggyback Registration”)), whether for its own account or for the account of others, the Company shall give all Demand Shareholders the Investors prompt written notice thereof (but not less than ten (10) Business Days days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable)Stock, in each case case, to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) the Investors with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Sellerthe Investors) for inclusion therein within ten five (105) days after such Piggyback Notice is received by such Piggyback Sellerthe Investors.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) advises the Company that, in its (their) opinion, the inclusion of all the securities shares of Company Common Stock sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities shares of Company Common Stock as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows effect and in the following order of priority:
: (i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the securities the Company as the Company, in its reasonable judgment, shall have determined, proposes to sell; and (Bii) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of up to the number of Registrable Securities proposed requested to be sold by included in such Piggyback SellersRegistration by the Investors, (C) thirdwhich, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on in the basis opinion of the number of shares of Company Common Stock proposed to lead managing underwriter(s), can be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if without adversely affecting the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellerssuccess thereof.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller the Investors in the Underwritten Offering unless such Piggyback Seller accepts the Investors accept the terms of the underwriting agreement (which shall be in customary form) as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable)Stock, the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof Investors and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant that the Investors may elect to Section 4.1, require the Demand Shareholders may Company to continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
(e) Any time that a Piggyback Registration involves an Underwritten Offering, the Company shall select (in its sole discretion) the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities.
Appears in 3 contracts
Samples: Shareholder Agreement (Yum China Holdings, Inc.), Shareholder Agreement (Yum China Holdings, Inc.), Shareholder Agreement (Yum Brands Inc)
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever the Company If at any time (i) LPL proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) file a Registration Statement under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant with respect to Section 4.1) (a “Piggyback Registration”), whether an offering of Shares for its own account or for the account of othersany other Person (any such Person, the Company a “Registering Party”) other than (i) a registration under Section 4.2 or Section 4.3 or (ii) a Registration on Form S-4 or Form S-8, or any successor or similar forms, LPL shall each such time promptly give all Demand Shareholders prompt written notice thereof to any Stockholder that Beneficially Owns any Registrable Securities of its intention to do so, of the registration form of the SEC that has been selected and of such Stockholder’s rights under this Section 4.7 (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b4.7(c) and Section 4.7(d), LPL shall include, and will cause the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect underwriter or underwriters, if applicable, to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) Ifinclude, in connection with a Piggyback Registration that involves an Underwritten Offeringthe proposed offering, on the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers same terms and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), conditions as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities Shares proposed to be sold by LPL or such Piggyback SellersRegistering Party in such offering, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, on a pro rata on basis for the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and Stockholder, all Registrable Securities that LPL has been requested in writing, within fifteen (D15) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if calendar days after the Piggyback Registration relates Notice is given, to an offering other than register for the Company’s own account, then such Stockholder (A) first, each such number of shares of Company Common Stock (or other securities, as applicable) sought registration pursuant to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account4.7, the Company shall not be required to include the Registrable Securities of a “Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(sRegistration”); provided, which shall be selected by the Company.
however, that (di) Ifif, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 a Piggyback Notice and prior to the time effective date of the registration statement Registration Statement filed in connection with such Piggyback Registration is declared effectiveregistration, the Company LPL shall determine for any reason not to register such shares of Company Common Stock (or other securitiesShares, as applicable)LPL, the Company may, at its election, shall give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon all Stockholders who Beneficially Own any Registrable Securities and, thereupon, LPL shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; providedregistration, thatand (ii) in case of a determination by LPL to delay registration of Shares, if such Stockholders shall be permitted to delay the registration of their Registrable Securities for the same period as the delay in registering such other Shares. In the case of any registration of Registrable Securities in an underwritten offering pursuant to this Section 4.14.7, the Demand Shareholders may continue the registration as a Demand Registration all Stockholders proposing to distribute their securities pursuant to this on Section 4.7 shall, at the terms request of Section 4.1LPL, enter into an agreement in customary form with the underwriter or underwriters selected by LPL or the Registering Party, as applicable.
Appears in 3 contracts
Samples: Stockholders' Agreement (LPL Investment Holdings Inc.), Stockholders Agreement (LPL Investment Holdings Inc.), Stockholders Agreement (LPL Investment Holdings Inc.)
Piggyback Registrations. (a) From and If the Company at any time after the date hereof, subject to the terms and conditions hereof, whenever the Company IPO Date proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act any shares of Common Stock or any Common Stock Equivalents (other than in connection with a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Demand Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”7(a)), whether or not for sale for its own account or account, on a form and in a manner which would permit registration of the Common Stock held by a Stockholder for sale to the account of otherspublic under the Securities Act, the Company shall give all Demand Shareholders prompt written notice thereof of the proposed registration to each Stockholder not later than thirty (but not less than 30) days prior to the filing thereof. Each Stockholder shall have the right to request that all or any part of his or its Registrable Common Stock be included in such registration. Each Stockholder can make such a request by giving written notice to the Company within ten (10) Business Days prior to (or, if the filing Company is a WKSI at such time, five (5) Business Days) after the giving of such notice by the Company with (any Stockholder giving the Commission of any registration statement with respect thereto). Such Company a notice (a “Piggyback Notice”) shall specify requesting that the number of shares of Company Registrable Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate owned by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to it be included in such Piggyback Registration by proposed registration being hereinafter referred to in this Section 7 as a “Registering Stockholder”); provided, however, that if the registration is an underwritten registration and the managing underwriters of such offering determine that the aggregate amount of securities of the Company which the Company, all Registering Stockholders and all other stockholders of the Company entitled to register securities on a pari passu basis with the Registering Stockholders in connection with such offering (“Other Registering Holders”) propose to include in such registration statement exceeds the maximum amount of securities that may be sold without having a material adverse effect on the success of the offering, including without limitation the selling price and other terms of such offering, the Company will include in such registration, (i) first, the Companysecurities which the Company proposes to sell, (ii) other Persons who have sought to have shares of Company second, the Common Stock registered in such Piggyback Registration pursuant of any holders with registration rights that are senior to the rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), of the Registering Stockholders hereunder and (iii) third, the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Registrable Common Stock (of such Persons being “Other Proposed Sellers”), as Registering Stockholders and the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Registrable Common Stock (or other securities, as applicable) to be sold by for the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities account of Piggyback Sellers, Other Registering Holders pro rata among all such Registering Stockholders and any such Other Registering Holders, taken together, on the basis of the number relative percentage of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought owned by all Registering Stockholders and such Other Registering Holders who have requested that securities owned by them be so included (it being further agreed and understood, however, that such underwriters shall have the right to be registered by Other Demanding Sellers, pro rata on eliminate entirely the basis participation of the number Registering Stockholders in such registration if such underwriters eliminate entirely the participation in such registration of shares of Company all such Other Registering Holders). Registrable Common Stock proposed to be registered and sold by such Other Demanding Sellers and (D) fourth, other shares pursuant to an underwritten offering for the account of Company Common Stock proposed to any Registering Stockholder shall be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold prospective underwriters selected or approved by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts on the terms and subject to the conditions of the one or more underwriting as agreed upon agreements negotiated between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, prospective underwriters. The Company may withdraw any registration statement at any time after giving written notice before it becomes effective, or postpone or terminate the offering of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior without obligation or liability to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1Registering Stockholder.
Appears in 3 contracts
Samples: Stockholders Agreement (Wesco Aircraft Holdings, Inc), Stockholders Agreement (Wesco Aircraft Holdings, Inc), Stockholders Agreement (Wesco Aircraft Holdings, Inc)
Piggyback Registrations. (a) From and after the date hereofexpiration of the First Step Restricted Period (but, subject, as applicable, to the Pre-Second Step Restricted Period) and/or the Second Step Restricted Period, as applicable, subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.15.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders holders of Registrable Securities prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable)Stock, in each case to the extent then known. Subject to Section 4.2(b5.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders holders of Registrable Securities (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) advises the Company that, in its opinion, the inclusion of all the securities shares of Company Common Stock sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities shares of Company Common Stock as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities shares of Company Common Stock proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 5.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 5.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable)Stock, the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the that Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.15.1.
Appears in 2 contracts
Samples: Shareholder Agreement (Walgreen Co), Purchase and Option Agreement (Walgreen Co)
Piggyback Registrations. (a) From The Company shall notify MSF in writing at least 10 Business Days (or such shorter period of time that is reasonable under the circumstances) prior to the filing of a Piggyback Registration Statement (as defined below), including the filing of a preliminary prospectus supplement, in the case of a Piggyback Offering to be conducted pursuant to a shelf registration statement that is already effective, for purposes of an Underwritten Offering of Company Shares to the public (whether for its own account or the account of others) (a “Piggyback Offering”), other than an Excluded Offering, and after shall afford MSF the date hereofopportunity to include in such registration statement all or part of the Registrable Shares, subject to the terms and conditions hereofhereof and the Separation Agreement. If MSF seeks to include any Registrable Shares in any such Registration Statement, whenever MSF shall notify the Company proposes to register any Company Common Stock (or any other securities that are in writing, within five Business Days after receipt of the same class notice from the Company, provided that MSF shall have two Business Days after receipt of a such a notice to request inclusion of Registrable Securities in a Piggyback Registration Statement in the case of a “bought deal”, “registered direct offering,” “at the market” or series as “overnight transaction” where no preliminary prospectus is used. If MSF decides not to include all of the Registrable Shares in any such registration statement, MSF shall nevertheless continue to have the right to include any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a Shares in any subsequent registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing statement as may be filed by the Company with respect to such an offering (other than an Excluded Offering), all upon the Commission of any terms and conditions set forth herein, except to the extent such Registrable Shares have been registered for resale pursuant to Section 2.3. Any registration statement with respect thereto). Such notice (including the filing of a “preliminary prospectus supplement, in the case of a Piggyback Notice”Offering to be conducted pursuant to a shelf registration statement that is already effective) shall specify the number filed for purposes of shares such an underwritten offering of Company Common Stock (or other securities, that includes an offer of Registrable Shares is referred to herein as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback SellerRegistration Statement.”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) IfMSF may elect to withdraw from any Underwriting Offering by written notice to the Company and the managing underwriter, delivered at least 10 calendar days prior to the effective date of the Piggyback Registration Statement or in connection with the case of a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought Statement to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration consummated pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the a shelf registration statement applicable to such Piggyback Registration only such securities as that is already effective or that will automatically become effective upon filing, two days after the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in public announcement of the following order of priority:
(i) Underwritten Offering or if the Piggyback Registration relates to an offering for Underwritten Offering is publicly announced at the Company’s own accountbeginning of a Business Day, then (A) first, 3:00 P.M. New York City time on such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellersday.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the The Company shall not be required have the right to include select the Registrable Securities of managing underwriter or underwriters to administer any underwritten offering pursuant to a Piggyback Seller in Registration Statement, and shall have the Underwritten Offering unless such Piggyback Seller accepts the terms right to consent to any underwriter proposed for an underwritten offering of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected Shares by the CompanyMSF pursuant to a Shelf Registration Statement.
(d) IfMSF shall enter into an underwriting agreement with the Company and the underwriters and shall sell its Registrable Securities included in any Piggyback Underwritten Offering, upon the same terms and conditions as those applicable to the Company, except as expressly provided herein.
(e) MSF may exercise the Piggyback Registration Rights only as to the same class of Company Shares as the Company proposes to sell in the underwritten offering covered by a Piggyback Registration Statement.
(f) The Company shall have the right to withdraw or delay, any Piggyback Registration Statement or terminate any associated Piggyback Underwritten Offering at any time after giving written notice in the case of its intention a Piggyback Underwritten Offering, without MSF’s consent, whether or not MSF has elected to include Registrable Shares in such registration. Any such termination shall not affect MSF’s registration rights hereunder to register any shares Registrable Shares, and in the case of Company Common Stock (or other securitiesa delay, shall be permitted to delay its registration request for the period of the Company’s delay as applicable) as set forth in this Section 4.2 and prior to the Company Shares.
(g) At any time the registration statement filed in connection with such Piggyback when an effective Shelf Registration Statement is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable)current, the Company may, at its electionbut shall have no obligation to permit, give written notice MSF to include Company Shares in a Piggyback Registration Statement, and if any such Company Shares are included in a Piggyback Registration Statement and sold, an identical number of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon Company Shares otherwise registered for resale by MSF shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, deregistered from the Demand Shareholders may continue the registration as a Demand Shelf Registration pursuant to the terms of Section 4.1Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Mercantil Bank Holding Corp), Registration Rights Agreement (Mercantil Bank Holding Corp)
Piggyback Registrations. (a) From and after the date hereofexpiration of the Initial Open Market Shares Restricted Period, the Additional Open Market Shares Restricted Period, the Warrant 1 Shares Restricted Period, and/or the Warrant 2 Shares Restricted Period, as applicable, subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 2 contracts
Samples: Shareholder Agreement (Walgreen Co), Shareholder Agreement (Amerisourcebergen Corp)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (ix) on a registration statement on Form S-4 or any successor form thereto, (iiy) on a registration statement on Form S-8 (or, in any of the cases of (x) or (y), on any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1)) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders the Stockholders (excluding Fortress Affiliate Stockholders which have not signed a joinder as contemplated by Section 2.1) prompt written notice thereof (but not less than ten (10) Business Days five days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) underwriter or underwriters (if any) any and a good faith estimate by if known). Upon the Company written request of any Person that on the proposed minimum offering price date of such shares of Company Common Stock (or other securitiesPiggyback Notice is a Stockholder, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein given within ten (10) five days after such Piggyback Notice is received by such Person (any such Persons, a “Piggyback Seller”) (which written request shall specify the number of Registrable Securities then presently intended to be disposed of by such Piggyback Seller), the Company, subject to the terms and conditions of this Agreement, shall use its commercially reasonable efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, the lead managing underwriter(sa nationally recognized investment bank engaged in connection with such Demand Registration) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter or investment bank can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.,
Appears in 2 contracts
Samples: Shareholder Agreement (Springleaf Holdings, Inc.), Shareholder Agreement (Springleaf Holdings, LLC)
Piggyback Registrations. (a) From and after 2.1 The Company agrees that, on each occasion that it shall propose to file a registration statement covering shares of Common Stock, whether on its own behalf or at the date hereof, subject to the terms and conditions hereof, whenever request of any other stockholder of the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) statement on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”under the Securities Act), whether for its own account with the Commission or for under the account laws of othersany state jurisdiction, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10"Piggyback Notice") Business Days of such proposed filing to the Holders at least 40 days prior to such filing. Upon the written request of any Holder, given within 10 days after the date of the Piggyback Notice, the Company shall use its best efforts to include in any such filing such number of shares of Subject Stock that shall be requested by the Company with the Commission of Holders, subject to any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify limitations as to the number of shares of Company Common Subject Stock that may be imposed by the Company's underwriter (or other securitiesif any); provided, as applicable) proposed to be registeredhowever, the proposed date of filing of that if such registration statement with is being filed at the Commission, the proposed means request of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company another stockholder of the proposed minimum offering price Company, then the maximum number of such shares of Company Subject Stock included in such registration shall be equal to the lesser of (a) the aggregate number of shares of the Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration registration multiplied by (i) a fraction, the Company, (ii) other Persons who have sought to have shares numerator of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company which shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold owned by such Other Demanding Sellers and (D) fourth, other shares the Holders on the date of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for Notice and the Company’s own account, then (A) first, such denominator of which shall be the aggregate number of shares of Company Common Stock that are issued and outstanding on such date, or (or other securities, as applicableb) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis shares of the number of Registrable Securities proposed Common Stock that the Holders shall have requested to be sold by have included in such Piggyback Sellers, (C) third, registration.
2.2 The Company agrees that it shall use its best efforts to cause the registration statement including the shares of Company Common Subject Stock to become effective under the Securities Act and under the securities laws of Specified States. The Company shall further use its best efforts to maintain the effectiveness of such registration statement for such period as may be sold reasonably necessary to complete the distribution of the Subject Stock covered thereby, subject to the limitations set forth in Section 4 hereof.
2.3 The Holders shall pay all fees and expenses of its counsel and accountants who shall not also be representing the Company, and shall reimburse the Company for certain additional expenses incurred by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 2.3. The Company shall pay all expenses, disbursements, fees (filing and prior to others), legal and accounting and other costs of every kind and nature incurred or borne by the time the registration statement filed Company in connection with such Piggyback Registration is declared effectivea registration requested under this Section 2 (both under the Securities Act and under the laws of the Specified States in which shares of the Subject Stock are being sold), except that the Holders shall promptly reimburse the Company for all such expenses, disbursements, fees and other costs using the ratio of net cash received by the Holders to the total amount of net cash received by the Company and any other sellers of shares of Common Stock under such registration statement unless the Company shall determine have otherwise agreed to bear such expenses, disbursements, fees and other costs on behalf of any other stockholder of the Company for any reason not to register such whom shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of are being included in such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1registration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Merck Kgaa /Fi), Registration Rights Agreement (Pharmaceutical Resources Inc)
Piggyback Registrations. (a) From and after the date hereofexpiration of the Restricted Period, subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement pursuant to Section 5.3 or (iv) pursuant to Section 4.15.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders holders of Registrable Securities prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable)Stock, in each case to the extent then known. Subject to Section 4.2(b5.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders holders of Registrable Securities (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) advises the Company that, in its opinion, the inclusion of all the securities shares of Company Common Stock sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities shares of Company Common Stock as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities shares of Company Common Stock proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 5.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 5.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable)Stock, the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the that Demand Shareholders Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.15.1.
Appears in 2 contracts
Samples: Stockholders Agreement (Us Foods, Inc.), Stockholders Agreement (Sysco Corp)
Piggyback Registrations. (a) From and after the date hereofIf, subject other than pursuant to the terms and conditions hereofSection 2.1, whenever the Company proposes or is required to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) file a registration statement under the Securities Act with respect to an offering of Common Stock, whether or not for sale for its own account (other than a registration by the Company statement (i) on Form S-4 X-0, Xxxx X-0 or any successor form forms thereto, (ii) on Form S-8 filed solely in connection with any employee benefit or any successor form theretodividend reinvestment plan, (iii) on so long as a Shelf Registration Statement shelf registration statement is effective and available pursuant to Section 2.1(h) hereof, filed solely in connection with the issuance or resale of Common Stock issuable upon conversion, exercise or exchange of any securities of the Company or any of its Subsidiaries, where such convertible, exercisable or exchangeable securities were issued in, or as part of, a financing transaction, or (iv) filed pursuant to Section 4.1the terms of that certain warrant, dated September 25, 2008, issued by the Company to Wachovia Investment Holdings, LLC), in a manner that would permit registration of Registrable Securities for sale to the public under the Securities Act, then the Company shall give prompt written notice of such proposed filing at least 30 days before the anticipated filing date (the “Piggyback Notice”) to the Holders. The Piggyback Notice shall offer the Holders the opportunity to include in such registration statement the number of Registrable Securities as they may request (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b)2.2(b) hereof, the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests for inclusion therein within 15 days after notice has been given to the Holders, to permit the distribution of such Registrable Securities in accordance with the methods of distribution elected by such Holders. The Holders shall be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration at any time at least two Business Days prior to the effective date of the Registration Statement relating to such Piggyback Registration. The Company shall use its reasonable best efforts to maintain the effectiveness of the Registration Statement for a Piggyback Registration for a period of at least one year after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. No Piggyback Registration shall count towards registrations required under Section 2.1.
(which written requests b) If any of the securities to be registered pursuant to the registration giving rise to the Holders’ rights under this Section 2.2 are to be sold in an underwritten offering, the Holders shall specify be permitted to include all Registrable Securities requested to be included in such registration in such offering on the number same terms and conditions as any Other Securities included therein; provided, however, that if such offering involves a firm commitment underwritten offering and the managing underwriter(s) of such underwritten offering advise the Company in writing that it is their good faith opinion that the total amount of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) Ifso included, in connection together with a Piggyback Registration all Other Securities that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company thatand any other Persons having rights to participate in such registration intend to include in such offering, in its opinionexceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the inclusion of Registrable Securities to be so included together with all the securities sought to Other Securities, then there shall be included in such Piggyback Registration by (i) firm commitment underwritten offering the Company, (ii) other Persons who have sought to have shares number or dollar amount of Company Common Stock registered in Registrable Securities and such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include Securities that in the registration statement applicable to opinion of such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without so adversely affecting such an effectoffering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows and in the following order of priorityfollows:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be all Other Securities being sold by the Company as the Company, in for its reasonable judgment, shall have determined, own account or by any Person (Bother than a Holder) exercising a contractual right to demand registration;
(ii) second, all Registrable Securities of Piggyback Sellersrequested to be included by the Holders, pro rata (if applicable), based on the basis of the number of Registrable Securities proposed to be sold Beneficially Owned by each such Piggyback Sellers, Holder; and
(Ciii) third, shares among any other holders of Company Common Stock sought to be registered by Other Demanding SellersSecurities requesting such registration, pro rata rata, based on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered Securities Beneficially Owned by each such holder of Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed SellersSecurities.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 2 contracts
Samples: Registration Rights Agreement (Americredit Corp), Exchange Agreement (Americredit Corp)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on a registration statement on Form S-4 or any successor form thereto, (ii) a registration statement on Form S-8 or any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders the Stockholders (excluding Fortress Affiliate Stockholders which have not signed a joinder as contemplated by Section 2.1) prompt written notice thereof (but not less than ten (10) Business Days five days prior to the filing by the Company with the Commission of any registration statement with respect thereto), provided, however, that no notice shall be required so long as the Stockholders, together, have Beneficial Ownership of at least 40% of the Voting Power of the Company. Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) underwriter or underwriters (if anyany and if known). Upon the written request (i) and if a good faith estimate Piggyback Notice is required by this paragraph, of any Person that on the Company of the proposed minimum offering price date of such shares of Company Common Stock (or other securitiesPiggyback Notice is a Stockholder, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein given within ten (10) five days after such Piggyback Notice is received by such Person, or (ii) if no Piggyback Notice is required by this paragraph, of any Person that on the date of approval by the Board of the filing of such Piggyback Registration is a Stockholder, within five days of such Board approval (any such Persons as described in (i) and (ii) above, each, a “Piggyback Seller”) (which written request shall specify the number of Registrable Securities then presently intended to be disposed of by such Piggyback Seller), the Company, subject to the terms and conditions of this Agreement, shall use its commercially reasonable efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, a nationally recognized independent investment bank selected by FIG LLC, the lead managing underwriter(sInitial Stockholder or any of its Permitted Transferees (to the extent a Stockholder hereunder), reasonably acceptable to the Company, and whose fees and expenses shall be borne solely by the Company) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter or investment bank can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock Sellers and securities sought to be registered by Other Demanding SellersSellers (if any), pro rata on the basis of the number of shares of Company Common Stock proposed to be sold held by such Piggyback Sellers and Other Demanding Sellers and (DC) fourththird, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered shares of Common Stock held by all such Other Demanding Sellers, Sellers and Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company as determined by the Company and (D) fourth, other shares of Company Common Stock proposed with such priorities among them as may from time to time be sold determined or agreed to by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the a holder’s Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any applicable underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof each Stockholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders that Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 2 contracts
Samples: Stockholders Agreement (Railamerica Inc /De), Shareholder Agreements (Missouri & Northern Arkansas Railroad Co)
Piggyback Registrations. (a) From and after If, at any time when there are Registrable Securities then outstanding there is not an effective Registration Statement covering all of the date hereofRegistrable Securities, subject to the terms and conditions hereof, whenever the Company proposes to register under the Securities Act any Company Common Stock (of its securities, whether or any other securities that are not for sale for its own account, on a form and in a manner which would permit registration of the same class or series as any Registrable Securities that are not shares of Company Common Stock) held by a Holder for sale to the public under the Securities Act (other than a including, but not limited to, registration by statements relating to secondary offerings of securities of the Company but excluding any registration statements (i) on Form S-4 N-14 (or any successor form theretoor substantially similar form), (ii) on Form S-8 otherwise relating to any corporate reorganization or any successor form theretoother transactions covered by Rule 145 promulgated under the Securities Act, or (iii) 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 Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”registration statement covering the resale of the Registrable Securities), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but of the proposed registration to each Holder not less later than ten (10) Business Days calendar days prior to the filing by thereof. Each Holder shall have the Company with the Commission right to request that all or any part of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all its Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration registration. Each Holder can make such a request by giving written notice to the Company within five (i5) calendar days after the Companyreceipt of such notice by the Holders; provided, (ii) other Persons who have sought however, that if the registration is an Underwritten Offering and the managing underwriters of such offering determine that the aggregate amount of securities of the Company which the Company and all Holders propose to have shares of Company Common Stock registered include in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such exceeds the maximum amount of securities as the Company is so advised by such lead managing underwriter(s) can that may be sold without having a material adverse effect on the success of the offering, including without limitation the selling price and other terms of such an effectoffering, as follows and the Company will include in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own accountsuch registration, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the securities that the Company as the Companyproposes to sell, in its reasonable judgment, shall have determined, (B) second, the Registrable Securities of Piggyback Sellerssuch Holders, pro rata among all such Holders on the basis of the number relative percentage of Registrable Securities owned by all Holders who have requested that securities owned by them be so included (it being further agreed and understood, however, that such underwriters shall have the right to eliminate entirely the participation of the Holders), and third, the comparable securities of any additional holders of the Company’s securities, pro rata among all such holders on the basis of the relative percentage of such securities held by each of them. Registrable Securities proposed to be registered and sold by such Piggyback Sellers, (C) third, shares pursuant to an Underwritten Offering for the account of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to any Holder shall be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold prospective underwriters selected or approved by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts on the terms and subject to the conditions of the one or more underwriting as agreed upon agreements negotiated between the Company and the prospective underwriters. Any Holder who holds Registrable Securities being registered in any offering shall have the right to receive a copy of the form of underwriting agreement and shall have an opportunity to hold discussions with the lead managing underwriter(s), which shall be selected by underwriter of the Company.
(d) If, terms of such underwriting agreement. The Company may withdraw any registration statement under this Section 3 at any time after giving written notice before it becomes effective, or postpone or terminate the offering of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior without obligation or liability to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Barings BDC, Inc.), Registration Rights Agreement
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company (i) proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (ix) on a registration statement on Form S-4 or any successor form theretoS-4, (iiy) on a registration statement on Form S-8 (or, in any of the cases of (x) or (y), on any successor form forms thereto), (iii) on a Shelf Registration Statement or (ivz) pursuant to Section 4.1) or (ii) proposes to effect an Underwritten Offering of its own securities pursuant to an effective Shelf Registration Statement (other than an Underwritten Offering pursuant to Section 4.1 or Section 4.3) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand the Shareholders prompt written notice thereof (but not less than ten (10) Business Days five business days prior to the filing by the Company with the Commission of any registration statement with respect thereto; provided that, for any Block Trade Offering, two business days’ notice shall be sufficient). Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) underwriter or underwriters (if any) any and a good faith estimate by if known). Upon the Company written request of any Person that on the proposed minimum offering price date of such shares of Company Common Stock Piggyback Notice is a Shareholder, given within (or other securities, as applicable)A) one business day, in each the case to of any Block Trade Offering, or (B) three business days, in the extent then known. Subject to Section 4.2(b)case of any other offering, the Company shall include in each after such Piggyback Registration all Registrable Securities held Notice is received by Demand Shareholders such Person (any such Person, a “Piggyback Seller”) (which written request shall specify the number of Registrable Securities then presently intended to be disposed of by such Piggyback Seller), the Company, subject to the terms and conditions of this Agreement, shall use its commercially reasonable efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests (which written requests shall specify the number of Registrable Securities requested for inclusion to be disposed of by included in such Piggyback Seller) for inclusion therein within ten (10) days after Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Notice is received by such Piggyback SellerRegistration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, a nationally recognized investment bank selected by Shareholders holding a majority of the lead managing underwriter(sRegistrable Securities included in such Piggyback Registration, reasonably acceptable to the Company, and whose fees and expenses shall be borne solely by the Company) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter or investment bank can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback SellersSellers and securities sought to be registered by Other Demanding Sellers (if any), pro rata on the basis of the number of Registrable Securities proposed to be sold Common Shares held by such Piggyback Sellers, Sellers and Other Demanding Sellers and (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered Common Shares held by all such Other Demanding Sellers, Sellers and Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company as determined by the Company and (D) fourth, other shares of Company Common Stock proposed with such priorities among them as may from time to time be sold determined or agreed to by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the a holder’s Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any applicable underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof each Shareholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand that Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 2 contracts
Samples: Shareholders Agreement (New Fortress Energy LLC), Shareholder Agreement (New Fortress Energy LLC)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company (i) proposes to register any Company Common Stock (or any other securities that are Equity Securities of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (ix) on a registration statement on Form S-4 F-4 or any successor form theretoS-4, as applicable, (iiy) on a registration statement on Form S-8 (or, in any of the cases of (x) or (y), on any successor form forms thereto), (iii) on a Shelf Registration Statement or (ivz) pursuant to Section 4.1) or (ii) proposes to effect an Underwritten Offering of its own securities pursuant to an effective Shelf Registration Statement (other than an Underwritten Offering pursuant to Section 4.1 or Section 4.3) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand the Shareholders prompt written notice thereof (but not less than ten (10) [***] Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number and type of shares Equity Securities of the Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) underwriter or underwriters (if any) any and a good faith estimate by if known). Upon the Company written request of any Person that on the proposed minimum offering price date of such shares of Company Common Stock Piggyback Notice is a Shareholder, given within (or other securities, as applicable)A) [***] Business Days, in each the case to of any Block Trade Offering, or (B) [***] Business Days, in the extent then known. Subject to Section 4.2(b)case of any other offering, the Company shall include in each after such Piggyback Registration all Registrable Securities held Notice is received by Demand Shareholders such Person (any such Person, a “Piggyback Seller”) (which written request shall specify the number of Registrable Securities then intended to be disposed of by such Piggyback Seller), the Company, subject to the terms and conditions of this Agreement, shall use its commercially reasonable efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests (which written requests shall specify the number of Registrable Securities requested for inclusion to be disposed of by included in such Piggyback Seller) for inclusion therein within ten (10) days after Registration on the same terms and conditions as the Equity Securities of the Company being sold in such Piggyback Notice is received by such Piggyback SellerRegistration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, a nationally recognized investment bank selected by Shareholders holding a majority of the lead managing underwriter(sRegistrable Securities included in such Piggyback Registration, reasonably acceptable to the Company, and whose fees and expenses shall be borne solely by the Company) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the securities Equity Securities of the Company sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares Equity Securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares Equity Securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the Equity Securities of the Company sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities Equity Securities of the Company as the Company is so advised by such lead managing underwriter(s) underwriter or investment bank can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares Equity Securities of the Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback SellersSellers and securities sought to be registered by Other Demanding Sellers (if any), pro rata on the basis of the number of Registrable Securities proposed to be sold Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) held by such Piggyback Sellers, Sellers and Other Demanding Sellers and (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis other Equity Securities of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares Equity Securities of the Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) held by all such Other Demanding Sellers, Sellers and Piggyback Sellers and (B) second, Registrable other Equity Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold Company held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company as determined by the Company and (D) fourth, other shares of Company Common Stock proposed with such priorities among them as may from time to time be sold determined or agreed to by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the a holder’s Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any applicable underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of its Equity Securities of the Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares Equity Securities of Company Common Stock (or other securities, as applicable)the Company, the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof each Shareholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand that Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.14.1 or a Shelf Underwritten Offering pursuant to the terms of Section 4.3.
Appears in 2 contracts
Samples: Shareholders’ Rights Agreement (Fortress Investment Group LLC), Shareholders’ Rights Agreement (Fortress Investment Group LLC)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) Ordinary Shares under the Securities Act for its own account or for the account of other persons who are not Demand Shareholders (other than the PIPE Registration Statement or a registration by the Company (i) on Form S-4 F-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, or (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.11.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders Holders prompt written notice thereof (but not less than ten (10) Business Days days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) Shares proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable)Ordinary Shares, in each case to the extent then known. Subject to Section 4.2(bSections 1.1 (b) and 1.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders Holders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) advises the Company that, in its opinion, the inclusion of all the securities Company Ordinary Shares sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock Ordinary Shares registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration pursuant to agreements entered into by the Company in accordance with Section 3.14 (such Persons Persons, if any, being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock Ordinary Shares (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities Company Ordinary Shares as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) Ordinary Shares to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata based on the basis of the number of Registrable Securities proposed to be sold Shares then held by each such Piggyback SellersSeller (including, in the case of SL Sponsor, Registrable Shares held by the Escrow Agent and included with SL Sponsor’s Registrable Shares as if they were held by SL Sponsor), (C) third, shares of Company Common Stock Ordinary Shares sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock Ordinary Shares proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock Ordinary Shares proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) Ordinary Shares sought to be registered by each Other Demanding Seller and Piggyback Seller pro rata in proportion to based on the number of securities sought to be registered Registrable Shares then held by all such Other Demanding SellersSellers and Piggyback Sellers (including, in the case of SL Sponsor, Registrable Shares held by the Escrow Agent and included with SL Sponsor’s Registrable Shares as if they were held by SL Sponsor), (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock Ordinary Shares to be sold by the Company and (DC) fourththird, other shares of Company Common Stock Ordinary Shares proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for 1.2 that is initiated by the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected ; in connection with any Underwritten Offering under this Section 1.2 that is not initiated by the Company, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Majority in Interest of the Holders of Registrable Securities participating in such offering and the lead managing underwriter(s).
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) Ordinary Shares as set forth in this Section 4.2 1.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable)Ordinary Shares, the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the provided that Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.11.1.
(e) Any time that a Piggyback Registration involves an Underwritten Offering that is initiated by the Company, the Company shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which of such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities and their respective economics; in the event that a Piggyback Registration involves an Underwritten Offering that is not initiated by the Company, the Majority in Interest of the Holders of Registrable Securities participating in such offering shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which of such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities and their respective economics; provided that such investment banker(s) and manager(s) shall be subject to the prior written consent of the Company, not to be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Registration Rights Agreement (Global Blue Group Holding AG), Agreement and Plan of Merger (Far Point Acquisition Corp)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 S‑4 or any successor form thereto, (ii) on Form S-8 S‑8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (iw) the Company, (iix) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iiiy) the Piggyback Sellers and (ivz) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 2 contracts
Samples: Stockholders Agreement (Air Transport Services Group, Inc.), Stockholders Agreement (Air Transport Services Group, Inc.)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on a registration statement on Form S-4 or any successor form thereto, (ii) a registration statement on Form S-8 or any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders the Piggyback Stockholders prompt written notice thereof (but not less than ten (10) Business Days business days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) underwriter or underwriters (if anyany and if known) and a good faith estimate by the Company of the proposed minimum offering price of such shares equity securities. Upon the written request of Company Common Stock (or other securities, as applicable), in each case to any Persons that on the extent then known. Subject to Section 4.2(b), date of the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders Notice constitute a Piggyback Stockholder (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests request shall specify the number of Registrable Securities requested then presently intended to be disposed of by such Piggyback Seller) for inclusion therein given within ten (10) days after such Piggyback Notice is received by such Piggyback Seller, the Company, subject to the terms and conditions of this Agreement, shall use its reasonable best efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, a nationally recognized independent investment bank selected by the lead managing underwriter(sInitial Stockholder or any of its Permitted Transferees (to the extent a Stockholder hereunder), reasonably acceptable to the Company, and whose fees and expenses shall be borne solely by the Company) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock Sellers and securities sought to be registered by Other Demanding SellersSellers (if any), pro rata on the basis of the number of shares of Company Common Stock proposed to be sold held by such Piggyback Sellers and Other Demanding Sellers and (DC) fourththird, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, Sellers and Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold as determined by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 3.2 for the Company’s account, the Company shall not be required to include the a holder’s Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any such underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 3.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the each Piggyback Sellers within five (5) Business Days thereof Stockholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders that Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.13.1.
Appears in 2 contracts
Samples: Investor Rights Agreement (GateHouse Media, Inc.), Investor Rights Agreement (GateHouse Media, Inc.)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on a registration statement on Form S-4 or any successor form thereto, (ii) a registration statement on Form S-8 or any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand the Shareholders prompt written notice thereof (but not less than ten (10) Business Days five days prior to the filing by the Company with the Commission of any registration statement with respect thereto); provided, however, that no notice shall be required so long as the Shareholders, collectively, have Beneficial Ownership of at least 40% of the Voting Power of the Company. Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) underwriter or underwriters (if anyany and if known). Upon the written request (i) and if a good faith estimate Piggyback Notice is required by this paragraph, of any Person that on the Company of the proposed minimum offering price date of such shares of Company Common Stock (or other securitiesPiggyback Notice is a Shareholder, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein given within ten (10) five days after such Piggyback Notice is received by such Person, or (ii) if no Piggyback Notice is required by this paragraph, of any Person that on the date of approval by the Board of the filing of such Piggyback Registration is a Shareholder, within five days of such Board approval (any such Persons as described in (i) and (ii) above, each, a “Piggyback Seller”) (which written request shall specify the number of Registrable Securities then presently intended to be disposed of by such Piggyback Seller), the Company, subject to the terms and conditions of this Agreement, shall use its commercially reasonable efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, a nationally recognized independent investment bank selected by FIG LLC, the lead managing underwriter(sInitial Shareholder or any of its Permitted Transferees (to the extent a Shareholder hereunder), reasonably acceptable to the Company, and whose fees and expenses shall be borne solely by the Company) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter or investment bank can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback SellersSellers and securities sought to be registered by Other Demanding Sellers (if any), pro rata on the basis of the number of Registrable Securities proposed to be sold Common Shares held by such Piggyback Sellers, Sellers and Other Demanding Sellers and (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered Common Shares held by all such Other Demanding Sellers, Sellers and Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company as determined by the Company and (D) fourth, other shares of Company Common Stock proposed with such priorities among them as may from time to time be sold determined or agreed to by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the a holder’s Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any applicable underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof each Shareholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand that Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 2 contracts
Samples: Shareholder Agreement (SeaCube Container Leasing Ltd.), Shareholder Agreement (SeaCube Container Leasing Ltd.)
Piggyback Registrations. (a) From and after the date hereofexpiration of the Restricted Period, subject to the terms and conditions hereof, whenever the Company Parent proposes to register any Company Parent Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company Parent (i) on Form S-4 or any successor form thereto (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), (ii) on Form S-8 or any successor form theretothereto (or other registration solely relating to an offering or sale to employees or directors of Parent pursuant to any employee stock plan or other employee benefit arrangement), (iii) on a Shelf Registration Statement Statement, (iv) in connection with any dividend or distribution reinvestment or similar plan or (ivv) pursuant to Section 4.15.1) (such registration other than those referred to in the immediately preceding parenthetical, a “Piggyback Registration”), whether for its own account or for the account of others, the Company Parent shall give all Demand Shareholders the Investor prompt written notice thereof (but not less than ten seven (107) Business Days prior to the filing by the Company Parent with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Parent Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company Parent of the proposed minimum offering price of such shares of Company Parent Common Stock (or other securities, as applicable)Stock, in each case to the extent then known. Subject to Section 4.2(b5.2(b), the Company Parent shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) the Investor with respect to which the Company Parent has received a written requests request (which written requests request shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Sellerthe Investor) for inclusion therein within ten four (104) days Business Days after such Piggyback Notice is received by such Piggyback Sellerthe Investor.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company advises Parent that, in its opinion, the inclusion of all the securities shares of Parent Common Stock sought to be included in such Piggyback Registration by (i) the CompanyParent, (ii) other Persons who have sought to have shares of Company Parent Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers Investor and (iv) any other proposed sellers of shares of Company Parent Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the price, timing or distribution of the securities offered, the market for the securities offered or the success thereofof such Piggyback Registration, then the Company Parent shall include in the registration statement applicable to such Piggyback Registration only such securities shares of Parent Common Stock as the Company Parent is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the CompanyParent’s own account, then (A) first, such number of shares of Company Parent Common Stock (or other securities, as applicable) to be sold by the Company as the CompanyParent, in its reasonable judgment, shall have determined, and (B) second, Registrable Securities of Piggyback the Investor and shares of Parent Common Stock sought to be registered by Other Demanding Sellers and by Other Proposed Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of Investor and the number of shares of Company Parent Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any such Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the CompanyParent’s own account, then (A) first, such number of shares of Company Parent Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, shares of Parent Common Stock to be sold by Parent, and (C) third, Registrable Securities of Piggyback the Investor and shares of Parent Common Stock sought to be registered by Other Proposed Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Parent Common Stock proposed to be sold by any the Investor and the number of shares of Parent Common Stock proposed to be sold by such Other Proposed Sellers.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 for the Company’s account5.2, the Company Parent shall not be required to include the Registrable Securities of a Piggyback Seller the Investor in the Underwritten Offering unless such Piggyback Seller the Investor accepts the terms of the underwriting as agreed upon between the Company Parent and the lead managing underwriter(s), which shall be selected by the CompanyParent.
(d) If, at any time after giving written notice of its intention to register any shares of Company Parent Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective5.2, the Company Parent shall determine for any reason not to register such shares of Company Parent Common Stock (or other securitiesStock, as applicable), the Company Parent may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof Investor and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 2 contracts
Samples: Investor Rights Agreement (Valley National Bancorp), Merger Agreement (Valley National Bancorp)
Piggyback Registrations. (a) From and At any time after the 180th day after the date hereofof the closing of the initial public offering by the Company of the Common Stock, subject so long as the Investors and their Affiliates hold at least 25% of the Registrable Stock originally issued pursuant to the terms and conditions hereofPurchase Agreement, whenever if the Company proposes to register any Company Common Stock (of its common equity securities or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) convertible into its common equity securities under the Securities Act (other than a registration by the Company pursuant to (i) a registration statement filed pursuant to Rule 415 under the Securities Act, (ii) a registration on Form S-4 or any successor form theretoform, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement an offering of securities in connection with an employee benefit, share dividend, share ownership or (ivdividend reinvestment plan) pursuant and the registration form to Section 4.1) (a “Piggyback Registration”), whether for its own account or be used may be used for the account registration of othersRegistrable Stock, the Company shall will give all Demand Shareholders prompt written notice thereof to all holders of Registrable Stock of its intention to effect such a registration (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (each a “"Piggyback Notice”") shall specify the number of shares of Company Common Stock (or other securitiesand, as applicablesubject to subparagraph 3(c) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b)below, the Company shall will include in each such Piggyback Registration registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) Stock with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such the date of sending the Piggyback Notice (a "Piggyback Registration"), unless, if the Piggyback Registration is received by not an underwritten offering, the Company in its reasonable judgement determines that, or in the case of an underwritten Piggyback Registration the managing underwriters advise the Company that, the inclusion of Registrable Stock would adversely interfere with such Piggyback Selleroffering, affect the Company's securities in the public markets or otherwise adversely affect the Company. Nothing herein shall affect the right of the Company to withdraw any such registration in its sole discretion.
(b) If, in connection with If a Piggyback Registration that involves is a primary registration on behalf of the Company and, if the Piggyback Registration is not an Underwritten Offeringunderwritten offering, the lead Company in its reasonable judgement determines that, or in the case of an underwritten Piggyback Registration, the managing underwriter(s) advise(s) underwriters advise the Company that, in its opinion, that the inclusion number of all the securities sought requested to be included in such Piggyback Registration by registration exceeds the number which can be sold in an orderly manner within a price range acceptable to the Company, the Company will include in such registration (i) first, the Company, securities the Company proposes to sell and (ii) other Persons who have sought second, the Registrable Stock requested to have shares of Company Common Stock registered be included in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) requested to be sold by the Company as the Company, included in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellerssuch registration, pro rata on among the basis of the number holders of Registrable Securities proposed to be sold by Stock requesting such Piggyback Sellers, (C) third, shares registration and the holders of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata such other securities on the basis of the number of shares of Company Common such Registrable Stock proposed to be sold and other securities requested for inclusion in such registration by each such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; orholder.
(iic) If a Piggyback Registration is a secondary registration on behalf of holders of the Company's securities other than the holders of Registrable Stock, and, if the Piggyback Registration relates to is not an offering other than for underwritten offering, the Company’s own accountCompany determines that, then (A) firstor in the case of an underwritten Piggyback Registration, such number of shares of the managing underwriters advise the Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to that the number of securities sought requested to be registered included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the holders initially requesting such registration, the Company will include in such registration the securities requested to be included therein by all the holders requesting such Other Demanding Sellers, (B) second, registration and the Registrable Securities of Piggyback SellersStock requested to be included in such registration, pro rata among the holders of securities requesting such registration on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of such Registrable Stock and other securities requested for inclusion in such registration by each such holder.
(d) In the case of an underwritten Piggyback Registration, the Company Common Stock will have the right to be sold select the investment banker(s) and manager(s) to administer the offering. If requested by the underwriters for any underwritten offerings by Holders, under a registration requested pursuant to Section 2(a), the Company will enter into a customary underwriting agreement with such underwriters for such offering, to contain such representations and warranties by the Company and (D) fourthsuch other terms which are customarily contained in agreements of this type. The Holders shall be a party to such underwriting agreement and may, other shares at their option, require that any or all of Company Common Stock proposed the conditions precedent to the obligations of such underwriters under such underwriting agreement be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for conditions precedent to the Company’s account, the Company obligations of Holders. The Holders shall not be required to include make any representations or warranties to or agreement with the Company or the underwriters other than representations, warranties or agreements regarding the Holders, the Holders' right and interest in the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company Stock and the lead managing underwriter(s), which shall be selected Holders' intended method of distribution and any other representation or warranties required by the Companylaw.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 2 contracts
Samples: Registration Rights Agreement (FTD Com Inc), Registration Rights Agreement (FTD Com Inc)
Piggyback Registrations. (a) From and after Each time the date hereof, subject to the terms and conditions hereof, whenever the Company Partnership proposes to register any Company Common Stock of its equity securities (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stockthan pursuant to an Excluded Registration) under the Securities Act for sale to the public (whether for the account of the Partnership or the account of any Existing Holder, Pre-IPO Holder or other securityholder (other than a Holder pursuant to this Agreement) of the Partnership pursuant to contractual registration by rights) and the Company form of registration statement to be used (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on including a Shelf Registration Statement or (ivStatement) pursuant to Section 4.1) permits the registration of Registrable Securities, the Partnership shall give prompt written notice (a “Piggyback RegistrationRegistration Notice”), whether for its own account or for ) to each Holder and the account of others, the Company Existing Holders (which notice shall give all Demand Shareholders prompt written notice thereof (but be given not less than ten (10i) five Business Days prior to the anticipated filing by date or (ii) three Business Days prior to the Company with anticipated filing date in the Commission case of an Overnight Underwritten Offering, Same-Day Offering or similar “bought deal”), which notice shall offer each such Holder and each Existing Holder the opportunity to include any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number or all of shares of Company Common Stock (its or other securitieshis Registrable Securities and Existing Registrable Securities, as applicable, in such registration statement, subject to the limitations contained in Section 2.2(b) proposed hereof. Each such Holder who desires to be registered, the proposed date of filing of have its or his Registrable Securities included in such registration statement with shall so advise the Commission, the proposed means of distribution and the proposed managing underwriter(s) Partnership in writing (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify stating the number of Registrable Securities desired to be registered) within three Business Days (or one Business Day in the case of an Overnight Underwritten Offering, Same-Day Offering or similar “bought deal”) after the date it receives such notice from the Partnership. Any Holder shall have the right to withdraw such Hxxxxx’s request for inclusion of all or a portion of such Holder’s Registrable Securities in any registration statement pursuant to this Section 2.2(a) by giving written notice to the Partnership of such withdrawal. Subject to Section 2.2(b) below, the Partnership shall include in such registration statement all such Registrable Securities so requested to be disposed of by included therein; provided, however, that the Partnership may at any time withdraw or cease proceeding with any such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection registration if it shall at the same time withdraw or cease proceeding with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion registration of all the other equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities originally proposed to be sold by such Piggyback Sellersregistered. For the avoidance of doubt, (C) third, shares of Company Common Stock sought any registration or offering pursuant to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company 2.2 shall not be required to include the Registrable Securities of a Piggyback Seller in the considered an Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine Shelf Takedown for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms purposes of Section 4.12.1 of this Agreement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Kimbell Royalty Partners, LP), Series a Preferred Unit Purchase Agreement (Kimbell Royalty Partners, LP)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (ix) on a registration statement on Form S-4 or any successor form theretoS-4, (iiy) on a registration statement on Form S-8 or (z) otherwise solely pursuant to any employee benefit plan arrangement (or, in any of the cases of (x) or (y), on any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1)) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders the Stockholders prompt written notice thereof (but not less than ten (10) Business Days five days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) underwriter or underwriters (if any) any and a good faith estimate by if known). Upon the Company written request of any Person that on the proposed minimum offering price date of such shares of Company Common Stock (or other securitiesPiggyback Notice is a Stockholder, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein given within ten (10) five days after such Piggyback Notice is received by such Person (any such Person, a “Piggyback Seller”) (which written request shall specify the number of Registrable Securities then presently intended to be disposed of by such Piggyback Seller), the Company, subject to the terms and conditions of this Agreement, shall use its commercially reasonable efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, the lead managing underwriter(sa nationally recognized investment bank engaged in connection with such Demand Registration) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter or investment bank can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock Sellers and securities sought to be registered by Other Demanding SellersSellers (if any), pro rata on the basis of the number of shares of Company Common Stock proposed to be sold held by such Piggyback Sellers and Other Demanding Sellers and (DC) fourththird, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered shares of Common Stock held by all such Other Demanding Sellers, Sellers and Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company as determined by the Company and (D) fourth, other shares of Company Common Stock proposed with such priorities among them as may from time to time be sold determined or agreed to by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the a holder’s Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any applicable underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof each Stockholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders that Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 2 contracts
Samples: Shareholder Agreements (Nationstar Mortgage Holdings Inc.), Stockholders Agreement (Nationstar Mortgage Holdings Inc.)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, at any following the termination of the transfer restrictions described in Section 2.1(a) whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on a registration statement on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “"Piggyback Registration”"), whether for its own account or for the account of others, the Company shall give all Demand the Piggyback Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “"Piggyback Notice”") shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) underwriter or underwriters (if anyany and if known) and a good faith estimate by the Company of the proposed minimum offering price of such shares equity securities. Upon the written request of Company Common Stock (or other securities, as applicable), in each case to any Persons that on the extent then known. Subject to Section 4.2(b), date of the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders Notice constitute a Piggyback Shareholder (a “"Piggyback Seller”") with respect to which the Company has received written requests (which written requests request shall specify the number of Registrable Securities requested then presently intended to be disposed of by such Piggyback Seller) for inclusion therein given within ten five (105) days Business Days after such Piggyback Notice is received by such Piggyback Seller, the Company, subject to the terms and conditions of this Agreement, shall use its reasonable best efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company's equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, a nationally recognized independent investment bank selected by the lead managing underwriter(sCompany) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “"piggyback” " or other incidental or participation registration rights) such registration (such Persons being “"Other Demanding Sellers”"), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “"Other Proposed Sellers”"), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s 's own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock securities sought to be registered by Other Demanding SellersSellers (if any), pro rata on the basis of the number of shares of Company Common Stock proposed to be sold Shares held by such Other Demanding Piggyback Sellers and (DC) fourththird, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s 's own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller Seller, the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold as determined by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 5.2 for the Company’s 's account, the Company shall not be required to include the a holder's Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any such underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 5.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the each Piggyback Sellers within five (5) Business Days thereof Shareholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand that Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.15.1.
Appears in 2 contracts
Samples: Shareholder Agreement (Aircastle LTD), Shareholder Agreement (Aircastle LTD)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (ix) on a registration statement on Form S-4 or any successor form thereto, (iiy) on a registration statement on Form S-8 (or, in any of the cases of (x) or (y), on any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1)) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders the Stockholders (excluding Permitted Transferees which have not signed a joinder as contemplated by Section 2.01) prompt written notice thereof (but not less than ten (10) Business Days five days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) underwriter or underwriters (if any) any and a good faith estimate by if known). Upon the Company written request of any Person that on the proposed minimum offering price date of such shares of Company Common Stock (or other securitiesPiggyback Notice is a Stockholder, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein given within ten (10) five days after such Piggyback Notice is received by such Person (any such Persons, a “Piggyback Seller”) (which written request shall specify the number of Registrable Securities then presently intended to be disposed of by such Piggyback Seller), the Company, subject to the terms and conditions of this Agreement, shall use its commercially reasonable efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, the lead managing underwriter(sa nationally recognized investment bank engaged in connection with such Demand Registration) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand Demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter or investment bank can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock Sellers and securities sought to be registered by Other Demanding SellersSellers (if any), pro rata on the basis of the number of shares of Company Common Stock proposed to be sold held by such Piggyback Sellers and Other Demanding Sellers and (DC) fourththird, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered shares of Common Stock held by all such Other Demanding Sellers, Sellers and Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company as determined by the Company and (D) fourth, other shares of Company Common Stock proposed with such priorities among them as may from time to time be sold determined or agreed to by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 4.02 for the Company’s account, the Company shall not be required to include the a holder’s Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided that any applicable Underwriting Agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 4.02 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof each Stockholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders provided that Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.14.01.
Appears in 2 contracts
Samples: Stockholders Agreement (OneMain Holdings, Inc.), Stockholders Agreement (OneMain Holdings, Inc.)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, at any following the termination of the transfer restrictions described in Section 2.1(a) whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on a registration statement on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand the Piggyback Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) underwriter or underwriters (if anyany and if known) and a good faith estimate by the Company of the proposed minimum offering price of such shares equity securities. Upon the written request of Company Common Stock (or other securities, as applicable), in each case to any Persons that on the extent then known. Subject to Section 4.2(b), date of the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders Notice constitute a Piggyback Shareholder (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests request shall specify the number of Registrable Securities requested then presently intended to be disposed of by such Piggyback Seller) for inclusion therein given within ten five (105) days Business Days after such Piggyback Notice is received by such Piggyback Seller, the Company, subject to the terms and conditions of this Agreement, shall use its reasonable best efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, a nationally recognized independent investment bank selected by the lead managing underwriter(sCompany) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock securities sought to be registered by Other Demanding SellersSellers (if any), pro rata on the basis of the number of shares of Company Common Stock proposed to be sold Shares held by such Other Demanding Piggyback Sellers and (DC) fourththird, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller Seller, the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold as determined by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 5.2 for the Company’s account, the Company shall not be required to include the a holder’s Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any such underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 5.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the each Piggyback Sellers within five (5) Business Days thereof Shareholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand that Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.15.1.
Appears in 2 contracts
Samples: Shareholder Agreement (Marubeni Corp /Fi), Shareholder Agreement (Marubeni Corp /Fi)
Piggyback Registrations. (aUnless all of the Registrable Securities are covered by effective registration statements, or if the shares issuable upon exercise of the Warrants may be re-sold pursuant to Rule 144(k) From and after under the date hereofSecurities Act, subject to the terms and conditions hereof, whenever each time the Company proposes decides to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) file a Registration Statement under the Securities Act (other than a registration by the Company (i) on Form Forms S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account registration of otherssecurities issued or to be issued in connection with a merger or acquisition or employee benefit plan) covering the offer and sale by it, or other holders of the Company's securities who may demand registration of such securities of any of its securities for money, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to all Holders of Registrable Securities. The Company shall include in such Registration Statement such shares of Registrable Securities for which it has received written requests to register such shares within 30 days after such written notice has been given. If the filing by Registration Statement is to cover an Underwritten Public Offering, such Registrable Securities shall be included in the Company 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 in any Underwritten Public Offering, the inclusion of all of the shares of Registrable Securities and any other Common Stock requested to be registered would interfere with the Commission successful marketing of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify smaller number of such shares, then the number of shares of Company Registrable Securities and other Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by the offering shall be made in accordance with the following priorities: (i1) first, the shares to be sold for the account of the Company, (ii2) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”)second, (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares to be registered for the Holder reduced on a pro-rata basis based on the number of Company Common Stock (or other securities, as applicable) shares to be sold by the Company Holder as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of compared to the number of Registrable Securities proposed shares to be sold by such Piggyback Sellers, all other selling stockholders. All shares so excluded from the underwritten public offering shall be withheld from the market by the Holders thereof for a period (C) third, shares of Company Common Stock sought not to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion exceed 30 days prior to the number of securities sought effective date and 90 days thereafter) that the managing underwriter reasonably determines is necessary in order to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on effect the basis of the number of Registrable Securities proposed Underwritten Public Offering. The Company may decline to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock file a Registration Statement after giving notice to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed any Holder pursuant to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for 2(a), or withdraw a Registration Statement after filing and after such notice, but prior to the Company’s accounteffectiveness thereof, provided, that the Company shall not be required to include the Registrable Securities promptly notify each Holder in writing of a Piggyback Seller in the Underwritten Offering unless any such Piggyback Seller accepts the terms of the underwriting as agreed upon between action and provided, further, that the Company and the lead managing underwriter(s), shall bear all expenses which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior would otherwise have been charged to the time the registration statement filed Holder in connection with such Piggyback withdrawn Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Teraforce Technology Corp)
Piggyback Registrations. (ai) From and after the date hereof, subject Subject to the terms and conditions hereofSection 1(l), whenever the Company proposes to register the offer and sale of any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (iA) on Form S-4 or any successor form thereto, (iiB) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (ivC) pursuant to Section 4.11(a) of this Agreement) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders the Shareholder prompt written notice thereof (but not less than ten fourteen (1014) Business Days prior to the filing by the Company with the Commission SEC of any registration statement or prospectus supplement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares (or dollar amount, which may in either case be expressed as a range) of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the CommissionSEC, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable)Stock, in each case to the extent then known. Subject to Section 4.2(b1(b)(ii), the Company shall use commercially reasonable efforts to include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) the Shareholder with respect to which the Company has received a written requests request (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Sellerthe Shareholder) for inclusion therein within ten five (105) days Business Days after such Piggyback Notice is received by such Piggyback Sellerthe Shareholder.
(bii) If, in connection with a Piggyback Registration that involves an Underwritten Offeringunderwritten offering, the lead managing underwriter(s) advise(s) advises the Company that, in its opinion, the inclusion of all of the securities shares of Common Stock sought to be included in such Piggyback Registration by (i1) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii2) the Piggyback Sellers Shareholder and (iv3) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities shares of Common Stock as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(iA) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, and Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding SellersShareholder, pro rata on the basis of the number of shares of Common Stock proposed to be sold by each of the Company and the Shareholder, then, shares of Common Stock sought to be registered by Other Proposed Sellers, if any, pro rata on the basis of the number of shares of Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or;
(iiB) From the Effective Date until the 180th day after the Effective Date, if the Piggyback Registration relates to an offering other than for the Company’s own account, then (Aw) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion Proposed Sellers pursuant to the number of securities sought rights to be registered by all demand such Other Demanding Sellers, (B) second, registration and Registrable Securities of Piggyback Sellersthe Shareholder, pro rata on the basis of the number of Registrable Securities shares of Common Stock proposed to be sold by each of such Piggyback SellersOther Proposed Sellers and the Shareholder, (Cx) thirdsecond, shares of Company Common Stock to be sold by the Company and (Dy) fourththird, other shares of Company Common Stock sought to be registered by Other Proposed Sellers other than pursuant to rights to demand such registration, pro rata on the basis of the number of shares of Common Stock proposed to be sold by any such Other Proposed Sellers; and
(C) From and after the 181st day after the Effective Date, if the Piggyback Registration relates to an offering other than for the Company’s own account, then (w) first, such number of shares of Common Stock sought to be registered by Other Proposed Sellers pursuant to rights to demand such registration, (x) second, Registrable Securities of the Shareholder, (y) third, shares of Common Stock to be sold by the Company, and (z) fourth, shares of Common Stock sought to be registered by Other Proposed Sellers other than pursuant to rights to demand such registration, pro rata on the basis of the number of shares of Common Stock proposed to be sold by such Other Proposed Sellers.
(ciii) For clarity, in connection with any Underwritten Offering underwritten offering under this Section 4.2 for the Company’s account1(b), the Company shall not be required to include the Registrable Securities of a Piggyback Seller the Shareholder in such offering unless the Underwritten Offering unless such Piggyback Seller Shareholder accepts the terms of the underwriting as agreed upon between the Company Company, the Other Proposed Sellers (if any) and the lead managing underwriter(s), which shall be selected by the CompanyCompany in its sole discretion, and the Shareholder otherwise becomes a party to the underwriting agreement and agrees to sell its Registrable Securities to the underwriter(s) upon the same terms and conditions, including the delivery of customary certifications and opinions of counsel.
(div) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective1(b), the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable)Stock, the Company may, at its election, shall as soon as practicable thereafter give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof Shareholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; .
(v) Shareholder shall have the right to withdraw its request for inclusion of its Registrable Securities in any Piggyback Registration, provided, that, that such request shall be made in writing to the Company prior to the earlier of (A) the Company’s filing of a preliminary prospectus supplement if permitted the Piggyback Registration is being undertaken pursuant to Section 4.1, an already-effective Shelf and (B) the Demand Shareholders may continue effective date of the registration as a Demand Piggyback Registration if the Piggyback Registration is being undertaken pursuant to the terms of Section 4.1a Registration Statement other than an already-effective Shelf.
Appears in 1 contract
Samples: Registration Rights Agreement (Post Holdings, Inc.)
Piggyback Registrations. (a) From and after the date hereof, subject a. Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement pursuant to Section 6.3, or (iv) pursuant to Section 4.16.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b6.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) b. If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (iw) the Company, (iix) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iiiy) the Piggyback Sellers and (ivz) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would materially and adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) i. if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) . if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) c. For clarity, in connection with any Underwritten Offering under this Section 4.2 6.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) d. If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 6.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.16.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.16.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereofIf, subject to the terms and conditions hereofat any time during which any Registrable Securities remain outstanding, whenever the Company proposes to register any Company of its Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (in an underwritten public offering, other than pursuant to a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or Form S-4, or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) similar forms then in effect (a “"Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b"), the Company shall will give prompt written notice to HP of its intention to effect such a registration (the "Registration Notice") and will, subject to Sections 2(c) and 2(d), include in each such Piggyback Registration registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) of HP with respect to which the Company has received written requests for inclusion therein within fifteen (15) days after the receipt of the Company's notice, not to exceed a maximum number of shares for HP equal to the product obtained when HP's pre-registration holdings of Registrable Securities are multiplied by a fraction, the numerator of which written requests shall specify is the total number of shares proposed to be sold in the Piggyback Registration by all other selling shareholders and the denominator of which is the total pre-transaction shareholdings of all other selling shareholders ("Pro Rata Fraction").
(b) The Registration Expenses of HP will be paid by the Company in all Piggyback Registrations.
(c) If a Piggyback Registration includes shares to be sold on behalf of the Company ("Primary Shares"), and the managing underwriter or underwriters advise the Company that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without materially adversely affecting the marketability of the offering, the Company will include in such registration, (i) first, the securities the Company proposes to sell; and (ii) second, the Registrable Securities requested to be disposed of included in such registration by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of HP and all the securities sought other Common Stock requested to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “the "Other Demanding Sellers”Common Stock"), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, included pro rata on the basis of the number of shares of such securities for which the Company Common Stock proposed to be sold has been given written requests for inclusion therein by each such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; orholder thereof.
(iid) if the If a Piggyback Registration relates to is an offering other than for underwritten secondary registration on behalf of holders of the Company’s own account's securities (not including Primary Shares), then (A) first, such number of shares of and the managing underwriters advise the Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to writing that in their opinion the number of securities sought requested to be registered included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company will include in such registration (i) first, the securities requested to be included therein by all the holders requesting such Other Demanding Sellersregistration, if any, and (Bii) second, the Registrable Securities of Piggyback Sellersrequested to be included in such registration by HP and all Other Common Stock requested to be included in such registration, to be included pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by such securities for which the Company and (D) fourth, other shares of Company Common Stock proposed to be sold has been given written requests for inclusion therein by any Other Proposed Sellerseach such holder thereof.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Samples: Registration Rights Agreement (Smartserv Online Inc)
Piggyback Registrations. (a) From and after the date hereofIf, subject other than pursuant to the terms and conditions hereofSection 2.1, whenever the Company proposes or is required to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) file a registration statement under the Securities Act with respect to an offering of Common Stock, any other of its equity securities or securities convertible into or exchangeable or exercisable for any of its equity securities, whether or not for sale for its own account (other than a registration by the Company statement (i) on Form S-4 X-0, Xxxx X-0 or any successor form thereto, forms thereto or (ii) on Form S-8 filed solely in connection with any employee benefit or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”dividend reinvestment plan), whether for its own account or for the account of others, then the Company shall give all Demand Shareholders prompt written notice thereof of such proposed filing at least 30 days before the anticipated filing date (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) to the Holders. The Piggyback Notice shall specify offer the Holders the opportunity to include in such registration statement the number of shares Registrable Securities (for purposes of Company Common Stock (or other securitiesthis Section 2.3, “Registrable Securities” shall be deemed to mean solely securities of the same type as applicable) those proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate offered by the Company of the proposed minimum offering price of such shares of Company Common Stock for its own account) as they may request (or other securities, as applicablea “PiggybackRegistration”), in each case to the extent then known. Subject to Section 4.2(b)2.3(b) hereof, the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) 15 days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with notice has been given to the Holders. The Holders shall be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration that involves an Underwritten Offering, at any time at least 2 Business Days prior to the lead managing underwriter(s) advise(s) effective date of the Registration Statement relating to such Piggyback Registration. The Company that, shall be required to maintain the effectiveness of the Registration Statement for a Piggyback Registration for a period of 180 days after the effective date thereof or such shorter period in its opinion, the inclusion of which all the securities sought to be Registrable Securities included in such Piggyback Registration by (i) the Company, (ii) other Persons who Statement have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, actually been sold. If the Company shall determine for any reason not to register such shares proceed with the registration that is the subject of Company Common Stock (or other securities, as applicable)the Piggyback Notice, the Company may, at its election, shall give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof Holders and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with the Piggyback Registration relating to such particular withdrawn or abandoned Piggyback Registrationregistration, but shall not be relieved of its obligation for Registration Expenses with respect to such registration.
(b) If any of the securities to be registered pursuant to the registration giving rise to the Holders’ rights under this Section 2.3 are to be sold in an underwritten offering, the Holders shall be permitted to include all Registrable Securities requested to be included in such registration in such offering on the same terms and conditions as any other shares of Capital Stock, if any, of the Company included therein; provided, thathowever, that if permitted pursuant such offering involves a firm commitment underwritten offering and the managing underwriter(s) of such underwritten offering advise the Company in writing that it is their good faith opinion that the total amount of Registrable Securities requested to Section 4.1be so included, together with all Other Securities that the Demand Shareholders may continue Company and any other Persons having rights to participate in such registration intend to include in such offering, exceeds the registration total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as a Demand Registration pursuant follows:
(i) first, all Other Securities being sold by the Company;
(ii) second, all Registrable Securities requested to be included by the terms Holders, pro rata (if applicable), based on the number of Section 4.1Registrable Securities Beneficially Owned by each such Holder; and
(iii) third, among any other holders of Other Securities requesting such registration, pro rata, based on the number of Other Securities Beneficially Owned by each such holder of Other Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (E Trade Financial Corp)
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever If the Company proposes to register, or is caused to register pursuant to a Demand Registration, any Company Common Stock under the Securities Act for sale for cash (otherwise than in connection with the registration of Common Stock issuable pursuant to an employee or any other securities that are director stock option, stock purchase or similar plan or pursuant to a merger, exchange offer or a transaction of the same class or series as any Registrable Securities that are not shares of Company Common Stocktype specified in Rule 145(a) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”Act), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written the Investor Representative and the Family Representative notice thereof (but not less than ten (10) Business Days of such proposed registration at least 15 days prior to the filing of a registration statement. At the written request of the Investor Representative or the Family Representative (the "Piggybacking Party") delivered to the Company within 10 days after the receipt of the notice from the Company, which request shall state the number of Registrable Shares ("Piggyback Shares") that the Investors or Family Shareholders, respectively, wish to sell or distribute publicly under the registration statement proposed to be filed by the Company, the Company with shall use its reasonable best efforts to register under the Commission of any Securities Act such Piggyback Shares, and to cause such registration statement with respect thereto). Such notice (a “"Piggyback Notice”Registration") shall specify to become and remain effective as provided in Section 6.11. Notwithstanding the foregoing, a Demanding Party may not also be a Piggybacking Party and in the event the managing underwriters of an offering advise the Company in writing that in their opinion the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration the registration exceeds the number which can be sold in the offering, the relative priority of the shares to be sold shall be governed by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Section 6.3(c). In a Piggyback Registration pursuant to rights to demand this Section 6.3 (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”a Piggyback Registration on a Demand Registration), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which underwriters shall be selected by the Company.
(db) IfIf a Piggyback Registration is an underwritten primary registration on behalf of the Company (including any underwritten primary registration resulting from a Demand preempted by the Company pursuant to Section 6.2), at any time after giving written notice and the managing underwriters thereof advise the Company in writing that in their opinion the number of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth requested to be included in this Section 4.2 and prior to the time the registration statement filed exceeds the number which can be sold in connection with such Piggyback Registration is declared effectivethe offering, the Company shall determine for any reason not to register such include in the registration (i) first, the shares of Company Common Stock the Company proposes to sell and (or other securitiesii) second, as applicable)the Piggyback Shares that the Investors and/or the Family Shareholders propose to sell, divided, if necessary, pro rata among the selling Shareholders based on the total shares proposed to be sold by the selling Shareholders at the time notice is given to the Company by such managing underwriters. Any Piggybacking Party shall be given prompt notice by the Company of any such cutback.
(c) If a Piggyback Registration is an underwritten secondary registration on behalf of a Demanding Party and the managing underwriters thereof advise the Company in writing that in their opinion the number of shares of Company Common Stock requested to be included in the registration exceeds the number which can be sold in the offering, the Company may, at its election, give written notice of such determination to shall include in the registration the Demand Shares and the Piggyback Sellers within five (5) Business Days thereof Shares proposed to be sold, divided, if necessary, pro rata among the selling Shareholders based on the total shares proposed to be sold by the selling Shareholders. The Demanding Party and thereupon the Piggybacking Party shall be relieved given prompt notice by the Company of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant cutback. Subject to Section 4.16.2, in the event the Company desires to participate in such a registration of Company Common Stock, the Company shall include in the registration (A) first, the Demand Shareholders may continue Shares and Piggyback Shares and (B) second, the registration as a Demand Registration pursuant shares of Company Common Stock that the Company proposes to the terms of Section 4.1sell.
Appears in 1 contract
Samples: Shareholders Agreement (Springs Co)
Piggyback Registrations. (ai) From and after At any time at least one hundred eighty (180) days following the date hereof, subject to consummation of the terms and conditions hereofIPO, whenever the Company proposes to register any Company Common Stock (or any other securities that are shares of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act for its own account or otherwise, including in response to a Demand Registration made through the procedures of Section 13(a) hereof, and the registration form to be used may be used for the registration of Registrable Securities (other than each, a registration by “Piggyback Registration”) (except for the Company (i) registrations on Form S-8 or Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall will give all Demand Shareholders prompt written notice thereof (but not less than notice, at least ten (10) Business Days days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commissionstatement, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject Stockholders, of its intention to Section 4.2(b), the Company shall effect such a registration and will use reasonable best efforts to include in each such Piggyback Registration registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”in accordance with the priorities set forth in Sections 13(b)(ii) and 13(b)(iii) below) with respect to which the Company has received written requests from Stockholders for inclusion specifying the number of equity securities desired to be registered, which request shall be delivered within ten (which written requests shall specify 10) days after the delivery of the Company’s notice. The Company may postpone or withdraw the filing or the effectiveness of a Piggyback Registration at any time in its sole discretion.
(ii) If a Piggyback Registration is an underwritten primary offering on behalf of the Company and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as creates a substantial risk that the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis price per share of the number of Registrable Securities proposed to be sold in the offering will be reduced due to the inclusion of such securities in the offering, then the managing underwriter and the Company may exclude securities (including Registrable Securities) from the registration and the underwriting, and the number of securities that may be included in such registration and underwriting shall include: (a) first, any securities that the Company proposed to sell, and (b) second, any Registrable Securities requested by such Piggyback Sellers, (C) third, shares of Company Common Stock sought Stockholders to be registered by Other Demanding Sellersincluded in such registration pursuant to this Section 13, pro rata among the holders of such Registrable Securities on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the total number of Registrable Securities proposed which are requested by such holders to be sold by included in such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellersregistration.
(ciii) For clarity, in In connection with any Underwritten Offering under this Section 4.2 for the Company’s accountPiggyback Registration, the Company shall not be required will have such right to include select the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice respect of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of offering in its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1sole discretion.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereofexpiration of the Restricted Period, subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a the Shelf Registration Statement pursuant to Section 5.3 other than a Marketed Underwritten Shelf Offering or (iv) pursuant to Section 4.15.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders holders of Registrable Securities prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable)Stock, in each case to the extent then known. Subject to Section 4.2(b5.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders holders of Registrable Securities (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) advises the Company that, in its opinion, the inclusion of all the securities shares of Company Common Stock sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration or any other Investor with respect to its Registrable Securities (such Persons Persons, collectively, being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities shares of Company Common Stock as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, Sellers and shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers and the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers Sellers, and (DC) fourththird, other shares of Company Common Stock sought to be registered by Other Proposed Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by any such Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities shares of Company Common Stock proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company Company, and (D) fourth, other shares of Company Common Stock sought to be registered by Other Proposed Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by any such Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 5.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective5.2, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable)Stock, the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the that Demand Shareholders may continue the registration as a Demand Registration pursuant subject to the terms of Section 4.15.1.
Appears in 1 contract
Piggyback Registrations. Each time the Corporation elects to proceed with a proposed Distribution of any of its securities, the Corporation shall as soon as practicable deliver a Distribution Notice to each Investor that (ax) From and after the date hereof, subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock has an Ownership Percentage of 10% or more or (or any other securities that are y) is an “affiliate” of the same class or series as any Registrable Securities that are not shares of Company Common Stock) Corporation pursuant to Rule 144 under the Securities Act (other than an “Affiliated Investor”). In such event, each such Affiliated Investor shall be entitled, by notice in writing given to the Corporation (a registration “Piggyback Registration Notice”) within five Business Days (except in the case of a “bought deal” in which case such Affiliated Investor shall have only two Business Days) after the receipt of any such Distribution Notice, to require that the Corporation cause that number of the Registrable Securities held by such Affiliated Investor (the Company “Participating Investor”) that represents up to 10% of the Registrable Securities to be sold in such Distribution (ithe “Piggyback Registrable Securities”) on Form S-4 or any successor form thereto, to be sold in such Distribution (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant such qualification being hereinafter referred to Section 4.1) (as a “Piggyback Registration”), whether for its own account or for the account . Any Distribution in respect of others, the Company which there is a Piggyback Registration shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company proceed in accordance with the Commission procedures set forth in Schedule B. If the size of any registration statement with respect thereto). Such notice (a “Piggyback the Distribution is increased or decreased from the size disclosed in the Distribution Notice”) shall specify , each Participating Investor shall, acting in its sole discretion, have 48 hours to adjust the number of shares its Piggyback Registrable Securities. Notwithstanding the foregoing:
(a) the Corporation may at any time, and without the consent of Company Common Stock (or other securitiesthe Participating Investor(s), as applicable) proposed to be registered, abandon the proposed date of filing of such registration statement with Distribution in which the Commission, the proposed means of distribution and the proposed managing underwriter(sParticipating Investor(s) (if any) and has delivered a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration Notice; provided that the Corporation will pay all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) Distribution Expenses in connection with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.abandoned Distribution; and
(b) If, in connection with if the proposed Distribution is not completed within 180 days of a Piggyback Registration that involves an Underwritten OfferingNotice, any Piggyback Registration Notice delivered by the lead managing underwriter(sParticipating Investor(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought hereunder shall be deemed to be included in such Piggyback Registration by (i) withdrawn and the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company Corporation shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not again be required to include comply with the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as procedures set forth out in this Section 4.2 and prior 7.1 with respect to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1proposed Distribution.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever the Company If INFONET at any time proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) file ----------------------- a registration statement under the United States Securities Act of 1933, as amended (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”"Securities Act"), with respect to any of its capital stock, -------------- whether or not for sale for its own account or account, on a form and in a manner which would permit registration of Class B Stock held by any Class A Stockholder, including, without limitation, Class B Stock which any Class A Stockholder may obtain by converting its Class A Stock as permitted by INFONET's restated certificate of incorporation (such shares of capital stock are herein referred to as the "Stock" and each of the Class A Stockholders are referred to as a ----- "Holder" and collectively the "Holders") for sale to the account of otherspublic under the ------ ------- Securities Act, the Company INFONET shall give all Demand Shareholders prompt written notice thereof (but of the proposed registration to each Holder not less later than ten (10) Business Days 30 days prior to the filing by the Company with the Commission of any such registration statement, it being understood that notice to the other Holders of the exercise of any demand registration right pursuant to Section 4(b) will constitute notice hereunder. Each Holder shall have the right to request that all or any part of its Stock be included in such registration statement with respect theretoby giving written notice to INFONET within 20 days after the giving of notice by INFONET (any Holder giving INFONET such notice requesting that shares of Stock owned by it be included in such proposed registration is hereinafter referred to as a "Piggybacking Holder"). Such notice ; provided, however, that (a “Piggyback Notice”i) shall specify if the ------------------- -------- ------- registration statement relates to an underwritten primary offering on behalf of INFONET and the prospective underwriters of such offering determine in good faith that the aggregate number of shares of capital stock of INFONET which all Piggybacking Holders and INFONET propose to include in such registration statement exceeds the number of shares of Company Common Stock (or other securitiescapital stock of INFONET that should be included therein, as applicable) proposed to be registeredINFONET will include in such registration, first, the proposed date of filing capital stock which INFONET proposes to sell and, second, the Stock of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback SellersPiggybacking Holders, pro rata among all such Piggybacking Holders, on the basis of the number relative amounts of Registrable Securities proposed Stock owned by all Piggybacking Holders (it being agreed and understood, however, that such underwriters shall have the right to eliminate entirely the participation in such registration of all Piggybacking Holders), and (ii) if the registration statement relates to an underwritten secondary offering on behalf of any other holder of capital stock of INFONET and the prospective underwriters determine in good faith that the aggregate amount of securities which all Piggybacking Holders and all such other holders propose to include in such registration exceeds the maximum amount of securities that should be included therein, INFONET will include in such registration the shares of Stock to be sold by for the account of such Piggyback Sellers, (C) third, other holders demanding registration and the shares of Company Common Stock sought to be registered by Other Demanding Sellersof such Piggybacking Holders, pro rata among all such holders and Piggybacking Holders, on the basis of the number relative amount of shares capital stock owned by all such holders and Piggybacking Holders. Shares of Company Common Stock proposed to be registered and sold by such Other Demanding Sellers and (Dpursuant to an underwritten offering for the account of any Piggybacking Holder pursuant to this Section 4(a) fourth, other shares of Company Common Stock proposed to shall be sold to prospective underwriters selected or approved by any Other Proposed Sellers; or
(ii) if INFONET and on the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion terms and subject to the number conditions of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s accountone or more underwriting agreements negotiated among INFONET, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company Piggybacking Holders and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, prospective underwriters. INFONET may withdraw any registration statement at any time after giving written notice before it becomes effective, or postpone the offering of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior without obligation or liability to the time the registration statement filed in connection with such Piggyback Registration is declared effectiveany Holder, the Company provided that it shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of any such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon Piggybacking Holders. Any such withdrawal or postponing shall be relieved without prejudice to the rights of the Holders immediately to request that such registration be effected as a registration under Section 4(b) to the extent permitted thereunder. No registration of securities effected under this Section 4(a) shall relieve INFONET of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted effect a registration of securities pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.14(b).
Appears in 1 contract
Piggyback Registrations. (aA) From and after If the date hereof, subject to the terms and conditions hereof, whenever the Company Issuer proposes to register any Company Common Stock (or any other securities that are of file with the same class or series as any Registrable Securities that are not shares of Company Common Stock) Commission a registration statement under the Securities Act (other than a registration by the Company statement (ix) on Form S-4 or S-8, or any successor form theretosubstituting therefor, (y) filed in connection with a tender or exchange offer or an asset or business acquisition, or (z) relating to any compensatory plan, agreement or arrangement), it will at each such time give written notice to the Holders of Registrable Securities of its intention so to do. Upon the written request of any Holder of Registrable Securities made within 15 days after receipt of notice from the Issuer, the Issuer will in good faith endeavor to cause all Registrable Securities which the Issuer has been requested to register by the Holders of Registrable Securities to be included in such registration statement under the Securities Act, to the extent required to permit the sale or other disposition by such Holders of their Registrable Securities; provided that (i) as a condition to any Holder's inclusion of any of his Registrable Securities in any such registration, such Holder must: (x) sell his Registrable Securities to any underwriter(s) selected by the Issuer on the same terms and conditions as apply to the Issuer and/or other holders of Common Stock included in such registration, (y) provide to such underwriter(s) and/or the Issuer true and accurate information regarding himself and his Registrable Securities and his intended method of distribution or other disposition thereof, and (z) complete, execute and deliver all questionnaires, powers-of-attorney, custody agreements, indemnities, underwriting agreements, "hold-back," "black-out" and other "no-sell" agreements and such other documents and agreements reasonably required by such underwriter(s) and/or the Issuer in connection with such registration or the distribution and sale of Registrable Securities thereunder; and (ii) on Form S-8 or if, at any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant time after giving notice of its intention to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days register any Common Stock and prior to the filing by effective date of the Company with the Commission of any registration statement filed in connection with respect theretosuch registration the Issuer shall determine, for any reason, not to register such Common Stock, then the Issuer shall give written notice to all Holders of Registrable Securities and, thereupon, shall be relieved of its obligation to register Registrable Securities in connection with such registration.
(B) Notwithstanding Section 4.1(A). Such notice (, if the managing underwriter(s), if any, of the offering to be effected pursuant to a “Piggyback Notice”) shall specify registration statement advises the Issuer or Holders of Registrable Securities that the total number of shares of Company Common Stock (which they and any other persons or other securities, as applicable) proposed entities intend to be registered, include in such offering would adversely affect the proposed date of filing success of such registration statement with the Commissionoffering, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed offered for the account of by the Holders of Registrable Securities shall be reduced pro rata among such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) IfHolders of Registrable Securities who have requested, in connection accordance with a Piggyback Registration that involves an Underwritten Offeringthe foregoing, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (i) the Companyoffering, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold held by such Piggyback SellersHolders of Registrable Securities, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of extent necessary to reduce the total number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold included in such offering to the number recommended by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which or excluded in their entirety, as the case may be. In the event that the contemplated distribution does not involve an underwritten public offering, such determination that the inclusion of such Holders of Registrable Securities shall adversely affect the success of the offering shall be selected made in good faith by the CompanyBoard of Directors of the Issuer.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Samples: Stockholders Agreement (Natural Health Trends Corp)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on a registration statement on Form S-4 or any successor form thereto, (ii) a registration statement on Form S-8 or any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders the Stockholders prompt written notice thereof (but not less than ten (10) Business Days five days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) underwriter or underwriters (if any) any and a good faith estimate by if known). Upon the Company written request of any Person that on the proposed minimum offering price date of such shares of Company Common Stock (or other securitiesPiggyback Notice is a Stockholder, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein given within ten (10) five days after such Piggyback Notice is received by such Person (any such Person, a “Piggyback Seller”) (which written request shall specify the number of Registrable Securities then presently intended to be disposed of by such Piggyback Seller), the Company, subject to the terms and conditions of this Agreement, shall use its commercially reasonable efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, the lead managing underwriter(sa nationally recognized investment bank engaged in connection with such Demand Registration) advise(s) advises the Company that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter or investment bank can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determineddetermined to sell, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock Sellers and securities sought to be registered by Other Demanding SellersSellers (if any), pro rata on the basis of the number of shares of Company Common Stock proposed to be sold held by such Piggyback Sellers and Other Demanding Sellers and (DC) fourththird, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered shares of Common Stock held by all such Other Demanding Sellers, Sellers and Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company as determined by the Company and (D) fourth, other shares of Company Common Stock proposed with such priorities among them as may from time to time be sold determined or agreed to by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the a holder’s Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any applicable underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof each Stockholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders that Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereofexpiration of the transfer restrictions set forth in Section 1.2, subject to the terms and conditions hereof, whenever the Company Parent proposes to register any Company Parent Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company Parent (i) on Form S-4 or any successor form thereto (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), (ii) on Form S-8 or any successor form theretothereto (or other registration solely relating to an offering or sale to employees or directors of Parent pursuant to any employee stock plan or other employee benefit arrangement), (iii) on a Shelf Registration Statement for an offering solely of debt that is convertible into an Equity Interest of Parent, (iv) in connection with any dividend or distribution reinvestment or similar plan or (ivv) pursuant to Section 4.13.1) (such registration other than those referred to in the immediately preceding parenthetical, a “Piggyback Registration”), whether for its own account or for the account of others, the Company Parent shall give all Demand Shareholders the Trustees prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company Parent with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Parent Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company Parent of the proposed minimum offering price of such shares of Company Parent Common Stock (or other securities, as applicable)Stock, in each case to the extent then known. Subject to Section 4.2(b)3.2(b) and the expiration of the transfer restrictions set forth in Section 1.2, the Company Parent shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) the Trustees with respect to which the Company Parent has received a written requests request (which written requests request shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Sellerthe Trustees) for inclusion therein within ten five (105) days Business Days after such Piggyback Notice is received by such Piggyback Sellerthe Trustees.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company advises Parent that, in its opinion, the inclusion of all the securities shares of Parent Common Stock sought to be included in such Piggyback Registration by (i) the CompanyParent, (ii) other Persons who have sought to have shares of Company Parent Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers Trustees and (iv) any other proposed sellers of shares of Company Parent Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the price, timing or distribution of the securities offered, the market for the securities offered or the success thereofof such Piggyback Registration, then the Company Parent shall include in the registration statement applicable to such Piggyback Registration only such securities shares of Parent Common Stock as the Company Parent is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the CompanyParent’s own account, then (A) first, such number of shares of Company Parent Common Stock (or other securities, as applicable) to be sold by the Company as the CompanyParent, in its reasonable judgment, shall have determined, and (B) second, Registrable Securities of Piggyback the Trustees and shares of Parent Common Stock sought to be registered by Other Demanding Sellers and by Other Proposed Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of Trustees and the number of shares of Company Parent Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any such Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the CompanyParent’s own account, then (A) first, such number of shares of Company Parent Common Stock (or other securities, as applicable) sought to be registered by each the Other Demanding Seller pro rata in proportion Sellers and (B) second, shares of Parent Common Stock to be sold by Parent, Registrable Securities of the number Trustees and shares of securities Parent Common Stock sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Proposed Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Parent Common Stock proposed to be sold by any Parent, the Trustees and such Other Proposed Sellers.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 for the Company’s account3.2, the Company Parent shall not be required to include the Registrable Securities of a Piggyback Seller the Trustees in the Underwritten Offering unless such Piggyback Seller accepts the Trustees accept the terms of the underwriting as agreed upon in good faith between the Company Parent and the lead managing underwriter(s), which shall be selected by the CompanyParent.
(d) If, at any time after giving written notice of its intention to register any shares of Company Parent Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective3.2, the Company Parent shall determine for any reason not to register such shares of Company Parent Common Stock (or other securitiesStock, as applicable), the Company Parent may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof Trustees and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Piggyback Registrations. (a) From and Other than in connection with the filing of a registration statement or an offering pursuant to Section 6.1 or Section 6.3 of this Agreement, if at any time commencing one year after the date hereof, subject to the terms and conditions hereof, whenever of this Agreement the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company file (i) on Form S-4 a prospectus supplement to an effective Shelf Registration Statement, or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a registration statement other than a Shelf Registration Statement for a delayed or (iv) continuous offering pursuant to Section 4.1) Rule 415 under the Securities Act, in either case, for the sale of Ordinary Shares for its own account, or for the benefit of the holders of any of its securities other than the holders of Registrable Securities, to an underwriter on a firm commitment basis for reoffering to the public or in a “bought deal” or “registered direct offering” with one or more investment banks (collectively, a “Piggyback Registration”), whether for its own account then as soon as practicable but not less than fifteen (15) days prior to the filing of (a) any preliminary prospectus supplement relating to such Piggyback Registration pursuant to Rule 424(b) under the Securities Act, (b) any prospectus supplement relating to such Piggyback Registration pursuant to Rule 424(b) under the Securities Act (if no preliminary prospectus supplement is used) or for (c) such registration statement, as the account of otherscase may be, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior of such proposed Piggyback Registration to the filing by the Company with the Commission holders of any registration statement with respect thereto). Such Registrable Securities and such notice (a “Piggyback Notice”) shall specify offer the holders of Registrable Securities the opportunity to include in such Piggyback Registration such number of shares Registrable Securities as each such holder of Registrable Securities may request in writing. Each such holder of Registrable Securities shall then have ten (10) days after receiving such Piggyback Notice to request in writing to the Company Common Stock inclusion of Registrable Securities in the Piggyback Registration, except that such holder of Registrable Securities shall have two (2) Business Days after such holder confirms receipt of the notice to request inclusion of Registrable Securities in the Piggyback Registration in the case of a “bought deal”, “registered direct offering” or other securities“overnight transaction” where no preliminary prospectus is used. Upon receipt of any such request for inclusion from a holder of Registrable Securities received within the specified time (a “Piggyback Seller”), as applicable) proposed the Company shall use commercially reasonable efforts to effect the registration in any registration statement of any of the holders of Registrable Securities requested to be registeredincluded on the terms set forth in this Agreement. Prior to the commencement of any “road show,” any Piggyback Seller shall have the right to withdraw its request for inclusion of its Registrable Securities in any registration by giving written notice to the Company of its request to withdraw and such withdrawal shall be irrevocable and, after making such withdrawal, such Piggyback Seller shall no longer have any right to include Registrable Securities in the Piggyback Registration as to which such withdrawal was made.
(b) If the Company does not qualify as a well-known seasoned issuer (within the meaning of Rule 405 under the Securities Act), (i) commencing one year after the date of this Agreement, the proposed date Company shall give each holder of Registrable Securities fifteen (15) days’ notice prior to filing a Shelf Registration Statement and, upon the written request of any such registration statement with the Commissionholder, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate received by the Company of the proposed minimum offering price within ten (10) days of such shares of Company Common Stock (or other securities, as applicable), in each case notice to the extent then known. Subject to Section 4.2(b)such holder, the Company shall include in each such Piggyback Shelf Registration all Registrable Securities held by Demand Shareholders (Statement a “Piggyback Seller”) with respect number of Ordinary Shares equal to which the Company has received written requests (which written requests shall specify the aggregate number of Registrable Securities requested to be disposed included without naming any requesting holder of Registrable Securities as a selling shareholder and including only a generic description of the holder of such securities (the “Undesignated Registrable Shares”), (ii) the Company shall not be required to give notice to any holder of Registrable Securities in connection with a filing pursuant to Section 6.1(a) unless such holder provided such notice to the Company pursuant to this Section 6.1(b) and included Undesignated Registrable Shares in the Shelf Registration Statement related to such filing, and (iii) commencing one year after the date of this Agreement, at the written request of a holder of Registrable Securities given to the Company more than seven (7) days before the date specified in writing by the Company as the Company’s good faith estimate of a launch of a Piggyback Registration (or such shorter period to which the Company in its sole discretion consents), the Company shall use commercially reasonable efforts to effect the registration of any of the Undesignated Registrable Shares of a holder of Registrable Securities so requested to be included and shall file a post-effective amendment or, if available, a prospectus supplement to a Shelf Registration Statement to include such Undesignated Registrable Shares as any such holder may request, provided that (a) the Company is actively employing its reasonable best efforts to effect such Piggyback SellerRegistration; and (b) for inclusion therein within ten the Company shall not be required to effect a post-effective amendment more than two (102) days after such Piggyback Notice is received by such Piggyback Sellertimes in any twelve (12) month period.
(bc) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (iw) the Company, (iix) other Persons who have sought to have shares of Company Common Stock Ordinary Shares registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iiiy) the Piggyback Sellers and (ivz) any other proposed sellers of shares of Company Common Stock Ordinary Shares (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock Ordinary Shares (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock Ordinary Shares sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock Ordinary Shares proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock Ordinary Shares proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock Ordinary Shares (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock Ordinary Shares to be sold by the Company and (D) fourth, other shares of Company Common Stock Ordinary Shares proposed to be sold by any Other Proposed Sellers.
(cd) For clarity, in connection with any Underwritten Offering under this Section 4.2 6.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(de) If, at any time after giving written notice of its intention to register any shares of Company Common Stock Ordinary Shares (or other securities, as applicable) as set forth in this Section 4.2 6.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock Ordinary Shares (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.16.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.16.1.
Appears in 1 contract
Piggyback Registrations. (a) From and In connection with or after the date hereofan Initial Public Offering, subject to the terms and conditions hereof, whenever if the Company at any time proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form or similar forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether or not for sale for its own account account, on a form and in a manner that would permit registration of Piggyback Registrable Securities for sale to the public under the Securities Act, it will, within ten days, give written notice to all the holders of Piggyback Registrable Securities of its intention to do so, <PAGE> describing such securities and specifying the form and manner and the other relevant facts involved in such proposed registration, including, without limitation, (x) the intended method to dispose of the securities offered, including whether or for the account of othersnot such registration will be effected through an underwriter in an underwritten offering or on a "best efforts" basis, and, in any case, the Company shall give all Demand Shareholders prompt identity of the managing underwriter, if any, and (y) the price at which the Piggyback Registrable Securities are reasonably expected to be sold. Upon the written notice thereof (but not less than ten (10) Business Days prior request of any holder of Piggyback Registrable Securities delivered to the filing by Company within 20 calendar days after the Company with the Commission receipt of any registration statement with respect thereto). Such such notice (a “Piggyback Notice”) which request shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested intended to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offeringholder), the lead managing underwriter(s) advise(s) Company will use its commercially reasonable efforts to effect the Company that, in its opinion, registration under the inclusion Securities Act of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then Registrable Securities that the Company shall include in the registration statement applicable has been so requested to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effectregister; provided, as follows and in the following order of priorityhowever, that:
(i) if the with respect to Piggyback Registration relates to an offering for the Company’s own accountRegistrable Securities acquired, then (A) first, such number of shares of Company Common Stock (directly or other securities, as applicable) to be sold by the Company as the Companyindirectly, in its reasonable judgmentrespect of Class B Membership Interests, they shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; ornot participate in an Initial Public Offering;
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) Ifif, at any time after giving such written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 securities and prior to the time effective date of the registration statement filed in connection with such Piggyback Registration is declared effectiveregistration, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the each holder of Piggyback Sellers within five (5) Business Days thereof Registrable Securities who shall have made a request for registration as hereinabove provided and thereupon the Company shall be relieved of its obligation to register any Piggyback Registrable Securities in connection with such particular withdrawn registration (but not from its obligation to pay the registration expenses in connection therewith);
(iii) if the Company has determined in good faith (A) that the Company then is unable to comply with its disclosure obligations (because it would otherwise need to disclose material information which the Company has a bona fide business purpose for preserving as confidential) or abandoned the SEC requirements in connection with a registration statement or (B) that the registration and distribution of Piggyback RegistrationRegistrable Securities (or the use of the registration statement or related prospectus) would interfere with any pending material financing, acquisition, corporate reorganization or any other material corporate development involving the Company, the Company may, at its election, give written notice of such determination to each holder of Piggyback Registrable Securities included in such registration and thereupon the Company shall be relieved of any obligation to maintain the effectiveness thereof or amend or supplement such registration statement; providedand
(iv) if such registration involves an underwritten offering, all holders of Piggyback Registrable Securities requesting to be included in the Company's registration <PAGE> must sell their Piggyback Registrable Securities to the underwriters selected by the Company on the same terms and conditions as apply to the Company and the Requesting Holders shall enter into the underwriting agreement agreed to between the Company and such managing underwriter.
(b) The Company shall not be obligated to effect any registration of Piggyback Registrable Securities under this Section 3.6 incidental to the registration of any of its securities in connection with mergers, acquisitions, exchange offers, dividend reinvestment plans or stock option or other employee benefit plans.
(c) If a registration pursuant to this Section 3.6 involves an underwritten offering and the managing underwriter advises the issuer that, if permitted in its opinion, the number of securities proposed to be included in such registration should be limited due to market conditions, the Company will so advise each holder of Piggyback Registrable Securities that has requested registration pursuant to Section 4.13.6(a), and shares shall be excluded from such offering in the following order until such limitation has been met: first, the Demand Shareholders may continue Piggyback Registrable Securities requested to be included in such offering by Polo, the Media Representative and any other holder of Piggyback Registrable Securities requesting to participate therein shall be excluded pro rata, based on the respective number of Piggyback Registrable Securities as to which registration as a Demand Registration has been so requested by such parties, until all such Piggyback Registrable Securities shall have been so excluded; and thereafter, the securities requested to be registered by the Company shall be excluded.
(d) In connection with any underwritten offering with respect to which holders of Piggyback Registrable Securities shall have requested registration pursuant to this Section 3.6, the terms Company shall have the right to select the managing underwriter with respect to the offering; provided that such managing underwriter shall be a nationally recognized investment bank and the Company shall have the right to choose a co-managing underwriter.
(e) The Company will pay all registration expenses incurred in connection with each of the registrations of Piggyback Registrable Securities effected by it pursuant to this Section 4.13.6. In addition, the Company shall have the sole right to determine the offering price per share and underwriting discounts in connection with any resale of Piggyback Registrable Shares pursuant to an underwritten offering in connection with a registration pursuant to this Section 3.6, after consultation with the selling stockholders and due regard for their view relating thereto.
Appears in 1 contract
Samples: Limited Liability Company Agreement
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) Ordinary Shares under the Securities Act for its own account or for the account of other persons who are not Table of Contents Demand Shareholders (other than the PIPE Registration Statement or a registration by the Company (i) on Form S-4 F-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, or (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.11.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders Holders prompt written notice thereof (but not less than ten (10) Business Days days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) Shares proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable)Ordinary Shares, in each case to the extent then known. Subject to Section 4.2(bSections 1.1 (b) and 1.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders Holders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) advises the Company that, in its opinion, the inclusion of all the securities Company Ordinary Shares sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock Ordinary Shares registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration pursuant to agreements entered into by the Company in accordance with Section 3.14 (such Persons Persons, if any, being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock Ordinary Shares (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities Company Ordinary Shares as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) Ordinary Shares to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata based on the basis of the number of Registrable Securities proposed to be sold Shares then held by each such Piggyback SellersSeller (including, in the case of SL Sponsor, Registrable Shares held by the Escrow Agent and included with SL Sponsor’s Registrable Shares as if they were held by SL Sponsor), (C) third, shares of Company Common Stock Ordinary Shares sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock Ordinary Shares proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock Ordinary Shares proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) Ordinary Shares sought to be registered by each Other Demanding Seller and Piggyback Seller pro rata in proportion to based on the number of securities sought to be registered Registrable Shares then held by all such Other Demanding SellersSellers and Piggyback Sellers (including, in the case of SL Sponsor, Registrable Shares held by the Escrow Agent and included with SL Sponsor’s Registrable Shares as if they were held by SL Sponsor), (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock Ordinary Shares to be sold by the Company and (DC) fourththird, other shares of Company Common Stock Ordinary Shares proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for 1.2 that is initiated by the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected ; in connection with any Underwritten Offering under this Section 1.2 that is not initiated by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not be required to register such shares of Company Common Stock (or other securities, as applicable), include the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities of a Piggyback Seller in connection with the Underwritten Offering unless such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to Seller accepts the terms of Section 4.1the underwriting as agreed upon between the Majority in Interest of the Holders of Registrable Securities participating in such offering and the lead managing underwriter(s).
Appears in 1 contract
Samples: Registration Rights Agreement (Global Blue Group Holding AG)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act for its own account or for the account of other persons who are not Demand Stockholders (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, or (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.11.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders Holders prompt written notice thereof (but not less than ten (10) Business Days days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable)Stock, in each case to the extent then known. Subject to Section 4.2(b1.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders Holders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein therein, on the same terms and conditions as the other securities otherwise being sold pursuant to such registration statement, within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) advises the Company that, in its reasonable opinion, the inclusion of all the securities shares of Company Common Stock sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities shares of Company Common Stock as the Company is so reasonably advised by such lead managing underwriter(s) can be sold without such an adverse effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata based on the basis of the number of Registrable Securities proposed to be sold then held by each such Piggyback SellersSeller, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, only if all of the securities referred to in clauses (A) through (C) have been included in such registration, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata based on the basis of the number of shares of Registrable Securities proposed to be sold then held by each such Piggyback SellersSeller, and (C) third, shares only if all of Company Common Stock the securities referred to be sold by the Company in clauses (A) and (DB) fourthhave been included in such registration, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account1.2, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 1.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable)Stock, the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the provided that Demand Shareholders Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.11.1.
Appears in 1 contract
Samples: Investor and Registration Rights Agreement (AST SpaceMobile, Inc.)
Piggyback Registrations. (a) From and after the date hereofIf at any time following an IPO, subject to the terms and conditions hereof, whenever the Company WireCo proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) for sale by WireCo under the Securities Act any of its equity securities (other than a registration by the Company (i) on Form S-4 or any successor form theretoForm S-8, (ii) on Form S-8 or any successor form theretoor similar forms or a Piggyback Registration), (iii) on a Shelf Registration Statement or (iv) any shares of WireCo Common Stock of NewCo pursuant to a Demand Registration under Section 4.1) 3.1.2, in a manner that would permit registration of Registrable Securities for sale to the public under the Securities Act, WireCo will each such time promptly give written notice to all Stockholders who beneficially own any Registrable Securities of its intention to do so, of the registration form of the SEC that has been selected by WireCo and of such holders’ rights under this Section 3.1 (the “Piggyback Notice”). WireCo will use its reasonable best efforts to include, and to cause the underwriter or underwriters, if applicable, to include, in the proposed offering, on the same terms and conditions as the securities of WireCo included in such offering, all Registrable Securities that WireCo has been requested in writing, within 15 calendar days after the Piggyback Notice is given, to register by the Stockholders thereof (each such registration pursuant to this Section 3.1.1, a “Piggyback Registration”); provided, whether for its own account or for the account of othershowever, the Company shall give all Demand Shareholders prompt written notice thereof that (but not less than ten (10a) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) Ifif, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 a Piggyback Notice and prior to the time effective date of the registration statement filed in connection with such Piggyback Registration is declared effectiveregistration, the Company WireCo shall determine for any reason not to register such shares equity securities (or, in the case of Company Common Stock (or other securitiesa Demand Registration, as applicableNewCo thereof so determines), the Company WireCo may, at its electionelection (or, in the case of a Demand Registration, where NewCo so determines, WireCo shall), give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon all Stockholders who beneficially own any Registrable Securities and, thereupon, shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback registration, and (b) in case of a determination by WireCo to delay registration of its equity securities (or, in the case of a Demand Registration; provided, thatNewCo so determines) WireCo shall be permitted to (or, if permitted pursuant to Section 4.1, in the Demand Shareholders may continue the registration as case of a Demand Registration where NewCo so determines, WireCo, for a period not to exceed 60 days, shall) delay the registration of such Registrable Securities for the same period as the delay in registering such other equity securities (provided that clauses (a) and (b) above shall not relieve WireCo of its obligations under Section 3.1.2). In the case of any registration of Registrable Securities in an underwritten offering pursuant to this Section 3.1.1, all Stockholders proposing to distribute their securities pursuant to this Section 3.1.1 shall, at the terms request of WireCo (or, in the case of a Demand Registration, NewCo), enter into an agreement in customary form with the underwriter or underwriters selected by WireCo (or, in the case of a Demand Registration, selected in accordance with Section 4.13.1.2). Notwithstanding the foregoing, following an IPO, WireCo shall not be obligated to effect registration of Registrable Securities for which Piggyback Registration is requested by a Stockholder if, at the time of such request, all such Registrable Securities are eligible for sale to the public by the requesting Stockholder without registration under Rule 144, with such sale not being limited by the volume restrictions thereunder.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on a registration statement on Form S-4 or any successor form thereto, (ii) a registration statement on Form S-8 or any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand the Piggyback Shareholders prompt written notice thereof (but not less than ten (10) Business Days business days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) underwriter or underwriters (if anyany and if known) and a good faith estimate by the Company of the proposed minimum offering price of such shares equity securities. Upon the written request of Company Common Stock any Person that on the date of the Piggyback Notice is a Piggyback Shareholder (or other securitieseach, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests request shall specify the number of Registrable Securities requested then presently intended to be disposed of by such Piggyback Seller) for inclusion therein given within ten (10) days after such Piggyback Notice is received by such Piggyback Seller, the Company, subject to the terms and conditions of this Agreement, shall use its reasonable best efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, a nationally recognized independent investment bank selected by the lead managing underwriter(sInitial Shareholder or any of its Permitted Transferees (to the extent a Shareholder hereunder), reasonably acceptable to the Company, and whose fees and expenses shall be borne solely by the Company) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock Sellers and securities sought to be registered by Other Demanding SellersSellers (if any), pro rata on the basis of the number of shares of Company Common Stock proposed to be sold held by such Piggyback Sellers and Other Demanding Sellers and (DC) fourththird, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered held by all such Other Demanding Sellers, Sellers and Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company as determined by the Company and (D) fourth, other shares of Company Common Stock proposed with such priorities among them as may from time to time be sold determined or agreed to by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the a holder’s Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any such underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the each Piggyback Sellers within five (5) Business Days thereof Shareholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand that Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Piggyback Registrations. (a) From If, other than pursuant to Section 2.1 and after the date hereof2.2, subject to the terms and conditions hereof, whenever the Company proposes or is required to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) file a registration statement under the Securities Act (other than a registration by the Company (i) on Form S-4 with respect to an offering of Common Stock or any successor form thereto, (ii) on Form S-8 other of the Company’s equity securities or securities convertible into or exchangeable or exercisable for any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”)of the Company’s equity securities, whether for sale for its own account or for the account of othersanother Person (other than a registration statement (i) on Form S-0, Xxxx X-0 or any successor forms thereto or (ii) filed solely in connection with any employee benefit or dividend reinvestment plan), then the Company shall give all Demand Shareholders prompt written notice thereof of such proposed filing at least 30 days before the anticipated filing date (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) to the Holders. The Piggyback Notice shall specify offer the Holders the opportunity to include in such registration statement the number of shares Registrable Securities (for purposes of Company Common Stock (or other securitiesthis Section 2.3, “Registrable Securities” shall be deemed to mean solely securities of the same type and class as applicable) those proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate offered by the Company of the proposed minimum offering price of such shares of Company Common Stock for its own account) as they may request (or other securities, as applicablea “Piggyback Registration”), in each case to the extent then known. Subject to Section 4.2(b)2.3(b) hereof, the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests for inclusion therein within 10 days after notice has been given to the Holders. The Holders shall be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration at any time at least 5 Business Days prior to the effective date of the Registration Statement relating to such Piggyback Registration.
(which written requests b) If any of the securities to be registered pursuant to the registration giving rise to the Holders’ rights under this Section 2.3 are to be sold in an underwritten offering, the Holders shall specify be permitted to include all Registrable Securities requested to be included in such registration in such offering on the number same terms and conditions as any other shares of Capital Stock, if any, of the Company included therein; provided, however, that if such offering involves a firm commitment underwritten offering and the managing underwriter(s) of such underwritten offering advise the Company in writing that it is their good faith opinion that the total amount of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) Ifso included, in connection together with a Piggyback Registration all Other Securities that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company thatand any other Persons having rights to participate in such registration intend to include in such offering, in its opinionexceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the inclusion of Registrable Securities to be so included together with all the securities sought to Other Securities, then there shall be included in such Piggyback Registration by (i) firm commitment underwritten offering the Company, (ii) other Persons who have sought to have shares number or dollar amount of Company Common Stock registered in Registrable Securities and such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include Securities that in the registration statement applicable to opinion of such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without so adversely affecting such an effectoffering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows and in the following order of priorityfollows:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be all Other Securities being sold by the Company as the Company, in its reasonable judgment, shall Stockholders or by any Person (other than a Holder) exercising a contractual right to demand registration until all such Other Securities have determined, been allocated for inclusion;
(Bii) second, all Registrable Securities of Piggyback Sellersrequested to be included by the Holders and any Other Securities proposed to be included by the Stockholders (other than a Stockholder selling Other Securities under (i)Section 2.3(b)(i)), pro rata (if applicable), based on the basis of the number of Registrable Securities proposed to be sold Beneficially Owned by each such Piggyback Sellers, Holder and any Other Securities Beneficially Owned by each such Stockholder until all such Registrable Securities have been allocated for inclusion; and
(Ciii) third, shares among any other holders of Company Common Stock sought to be registered by Other Demanding SellersSecurities requesting such registration, pro rata rata, based on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered Securities Beneficially Owned by each such holder of Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed SellersSecurities.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever If the Company at any time proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 any Stock or any successor form thereto, (ii) on Form S-8 security convertible into or any successor form thereto, (iii) on a Shelf Registration Statement exchangeable or (iv) pursuant to Section 4.1) (a “Piggyback Registration”)exercisable for Stock, whether or not for sale for its own account or and other than pursuant to a Demand Registration (as defined in the AMC Stockholders Agreement), on a form and in a manner which would permit registration of the Stock held by the Management Stockholders for sale to the account of otherspublic under the Securities Act, the Company shall give all Demand Shareholders prompt written notice thereof of the proposed registration to each Management Stockholder not later than thirty (but not less than 30) days prior to the filing thereof. Each Management Stockholder shall have the right to request that all or any part of such Management Stockholder’s Stock be included in such registration. Each Management Stockholder can make such a request by giving written notice to the Company within ten (10) Business Days prior to after the filing by receipt of the Company’s notice of the proposed registration; provided, however, that if the registration is an underwritten registration and there is an Underwriter Cutback, the Company with the Commission of any will include in such registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify only the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company securities that, in its opinion, the inclusion reasonable opinion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” underwriter or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) underwriters can be sold without such an effecthaving a material adverse effect on the success of the offering, as follows follows: first, the securities which the Company proposes to sell; second, the securities of the Investors (and their Permitted Transferees (as defined in the following order AMC Stockholders Agreement); third, the securities of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, Management Stockholders pro rata among all such Management Stockholders on the basis of the number relative percentage of Registrable Securities proposed such securities then held by all Management Stockholders who have requested such securities be so included (it being further agreed and understood, however, that such underwriters shall have the right to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on reduce or eliminate entirely the basis participation of the number of shares of Company Common Management Stockholders). Registrable Stock proposed to be registered and sold by such Other Demanding Sellers and (D) fourth, other shares pursuant to an underwritten offering for the account of Company Common Stock proposed to any Management Stockholders shall be sold to the prospective underwriters, selected by any Other Proposed Sellers; or
(ii) if the Piggyback holders of a majority of the Stock to which such Registration Statement relates to an offering other than for and approved by the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion on the terms and subject to the number conditions of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities one or more underwriting agreements negotiated between the holders of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourthwhich such Registration Statement relates, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(sprospective underwriters (which underwriting agreement(s), which shall for the avoidance of doubt, any Management Stockholder exercising registration rights pursuant to this Section 2 may be selected required by the Company.
(d) If, Company to execute). The Company may withdraw any Registration Statement at any time after giving written notice before it becomes effective, or postpone or terminate the offering of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior without obligation or liability to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1Management Stockholder.
Appears in 1 contract
Samples: Registration Rights Agreement (Marquee Holdings Inc.)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form theretoS-4, (ii) on Form S-8 or any successor form theretoS-8, (iii) on a Shelf Registration Statement or pursuant to Section 6.3, (iv) pursuant to Section 4.16.1, or (v) [* * *] (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) ), and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b6.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (iw) the Company, (iix) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iiiy) the Piggyback Sellers Sellers, and (ivz) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would materially and adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers Sellers, and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company Company, and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 6.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 6.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.16.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.16.1.
Appears in 1 contract
Piggyback Registrations. (a) From On and after the date hereofclosing of an underwritten initial public offering of the Common Stock, subject to as long as the terms and conditions hereofHolders hold any Registrable Stock, whenever if the Company proposes to register any Company Common Stock (of its common equity securities or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) convertible into its common equity securities under the Securities Act whether or not for its own account (other than a registration by the Company pursuant to (i) a registration on Form S-4 or any successor form theretoform, or (ii) on Form S-8 an offering of securities in connection with an employee benefit, share dividend, share ownership or any successor dividend reinvestment plan) and 4 SERIES BB REG. RIGHTS AGREE. the registration form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or be used may be used for the account registration of othersRegistrable Stock, the Company shall give all Demand Shareholders prompt written notice thereof to all Holders of its intention to effect such a registration (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (each a “"Piggyback Notice”") shall specify the number of shares of Company Common Stock (or other securitiesand, as applicablesubject to subparagraph 3(c) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b)below, the Company shall include in each such Piggyback Registration registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) Stock with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such the date of receipt of the Piggyback Notice is received by (a "Piggyback Registration"), unless, in the case of an underwritten Piggyback Registration, pursuant to Section 3(b) the managing underwriters advise the Company in writing that in their opinion, the inclusion of Registrable Stock would adversely interfere with such Piggyback Selleroffering. Nothing herein shall affect the right of the Company to withdraw any such registration in its sole discretion.
(b) If, in connection with If a Piggyback Registration that involves an Underwritten Offering, is a primary underwritten registration and the lead managing underwriter(s) advise(s) underwriters advise the Company in writing that, in its their opinion, the inclusion number of all the securities sought requested to be included in such Piggyback Registration by registration exceeds the number which can be sold in an orderly manner within a price range acceptable to the Company, the Company will include in such registration (i) first, the Companysecurities the Company proposes to sell, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”)second, (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) requested to be sold included therein, if any, by the Company as Series AA Holders and the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback SellersSeries CC Holders, pro rata among such Series AA Holders and Series CC Holders on the basis of the number of Registrable Securities proposed to be sold shares requested for inclusion by each such Piggyback SellersSeries AA Holder or Series CC Holder, and (Ciii) third, shares of Company Common the Registrable Stock sought requested to be registered included in such Registration by Other Demanding Sellersthe Holders of Registrable Stock and the securities requested to be included in such Registration by any other holder that has piggyback rights, pro rata on the basis of the number of shares of Company Common Registrable Stock proposed to be sold and other securities requested for inclusion in such registration by each such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; orHolder or holder.
(iic) If a Piggyback Registration is a secondary registration requested by other holders of the Company's securities and, if the Piggyback Registration relates to is an offering other than for underwritten Piggyback Registration and the Company’s own accountmanaging underwriters advise the Company in writing that, then (A) firstin their opinion, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought requested to be registered included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the holders initially requesting such registration, the Company will include in such registration (i) first, the securities requested to be included therein by all the holders requesting such Other Demanding Sellersregistration, (B) second, Registrable Securities of Piggyback Sellersthe Series AA Holders and the Series CC Holders, pro rata among such holders requesting such registration, Series AA Holders and Series CC Holders on the basis of the number of Registrable Securities proposed shares of Common Stock of the Company requested for inclusion in such registration by each such holder requesting such registration, Series AA Holder or Series CC Holder and (ii) second, the securities requested to be sold included therein by such Piggyback Sellersany other holders with piggyback rights and by the Holders, (C) third, pro rata among the holders with piggyback rights and the Holders on the basis of the number of shares of Company Common Stock to be sold by of the Company and (D) fourth, other shares of Company Common Stock proposed to be sold requested for inclusion in such registration by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless each such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Companyholder or Holder.
(d) If, at any time after giving written notice In the case of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such an underwritten Piggyback Registration is declared effectiveRegistration, the Company shall determine will have the right to select the investment banker(s) and manager(s) to administer the offering. If requested by the underwriters for any reason not underwritten offerings by Holders, under a registration requested pursuant to register such shares of Company Common Stock (or other securities, as applicableSection 2(a), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection will enter into a customary underwriting agreement with such particular withdrawn or abandoned Piggyback Registration; providedunderwriters for such offering, that, if permitted pursuant to Section 4.1, contain such representations and warranties by the Demand Shareholders may continue the registration as a Demand Registration pursuant to the Company and such other terms of Section 4.1.which are customarily contained in agreements
Appears in 1 contract
Samples: Registration Rights Agreement (Commvault Systems Inc)
Piggyback Registrations. (ai) From and after the date hereof, subject to the terms and conditions hereof, whenever Each time that the Company proposes for any reason to register any Company of its Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities 1933 Act (a “Proposed Registration”), other than pursuant to a registration by the Company (i) statement on Form S-4 or any successor form thereto, (ii) on Form S-8 (or any similar or successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”forms), whether for its own account or for unless a registration statement has been previously filed (and not withdrawn) covering the account resale of othersall of the Registrable Securities, the Company shall promptly give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) of such Proposed Registration to each of the Investors (which notice shall specify be given not less than thirty (30) days prior to the expected effective date of the Company’s registration statement) and shall offer the Investors the right to include any of their Registrable Securities in the Proposed Registration. No registration pursuant to this Section 2(e) shall relieve the Company of its obligations to register Registrable Securities pursuant to Section 2(a).
(ii) Each Investor shall have twenty (20) days from the date of receipt of the Piggyback Notice to deliver to the Company a written request specifying the number of shares Registrable Securities such Investor intends to sell and such Investor’s intended method of Company Common Stock (or other securities, as applicable) proposed disposition. Any Investor shall have the right to be registered, the proposed date of filing withdraw such Investor’s request for inclusion of such Investor’s Registrable Securities in any registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(spursuant to this Section 2(e) (if any) and a good faith estimate by giving written notice to the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then knownwithdrawal. Subject to Section 4.2(b)2(e)(iii) below, the Company shall include in each such Piggyback Registration registration statement all such Registrable Securities held by Demand Shareholders so requested to be included therein.
(a “Piggyback Seller”iii) with respect to which If the managing underwriter or underwriters of any Proposed Registration involving Registrable Securities advises the Company has received written requests (which written requests that the total number of Registrable Securities that the Investors and any other Persons intend to include in the offering exceeds the number that can be sold in such offering without being likely to have a material adverse effect on the price, timing or distribution of the Common Stock offered or the market for the Common Stock, then the Common Stock to be included in such underwritten offering shall specify include the number of Registrable Securities requested to be disposed of by that such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) underwriter or underwriters advises the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) writing can be sold without having such an material adverse effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates with such number to an offering for the Company’s own account, then be allocated (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellerspro rata among the Investors who have requested participation in such underwritten offering and (C) third, pro rata on among any other holders of Common Stock who have requested participation in such underwritten offering. The pro rata allocations for each Investor who has requested participation in such underwritten offering shall be the basis product of (a) the aggregate number of Registrable Securities proposed to be sold by all Investors in such Piggyback Sellers, underwritten offering multiplied by (Cb) third, shares of Company Common Stock sought to be registered the fraction derived by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and dividing (Dx) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold owned on the Closing Date by such Piggyback Sellers, Investor by (Cy) third, shares the aggregate number of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller owned on the Closing Date by all Investors participating in such underwritten offering. All participating Investors shall have the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention opportunity to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice share pro rata that portion of such determination priority allocable to the Piggyback Sellers within five (5any Investor(s) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1not so participating.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act for its own account or for the account of other persons who are not Demand Stockholders (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, or (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.11.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders Holders prompt written notice thereof (but not less than ten (10) Business Days days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable)Stock, in each case to the extent then known. Subject to Section 4.2(b1.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders Holders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) advises the Company that, in its opinion, the inclusion of all the securities shares of Company Common Stock sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities shares of Company Common Stock as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata based on the basis of the number of Registrable Securities proposed to be sold then held by each such Piggyback SellersSeller (provided that any Registrable Securities thereby allocated to a Piggyback Seller that exceed such Piggyback Seller’s request shall be reallocated among the remaining Piggyback Sellers in like manner), (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata based on the basis of the number of shares of Registrable Securities proposed to be sold then held by each such Piggyback SellersSeller (provided that any Registrable Securities thereby allocated to a Piggyback Seller that exceed such Piggyback Seller’s request shall be reallocated among the remaining Piggyback Sellers in like manner), (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account1.2, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 1.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable)Stock, the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the provided that Demand Shareholders Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.11.1.
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Samples: Registration Rights Agreement (Intercontinental Exchange, Inc.)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Public Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Public Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement pursuant to Section 6.3, or (iv) pursuant to Section 4.16.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Public Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Public Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Public Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Public Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b6.2(b), the Public Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Public Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Public Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (iw) the Public Company, (iix) other Persons who have sought to have shares of Public Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iiiy) the Piggyback Sellers and (ivz) any other proposed sellers of shares of Public Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would materially and adversely affect the success thereof, then the Public Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Public Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Public Company’s own account, then (A) first, such number of shares of Public Company Common Stock (or other securities, as applicable) to be sold by the Public Company as the Public Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Public Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Public Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Public Company’s own account, then (A) first, such number of shares of Public Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Public Company Common Stock to be sold by the Public Company and (D) fourth, other shares of Public Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 6.2 for the Public Company’s account, the Public Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Public Company and the lead managing underwriter(s), which shall be selected by the Public Company.
(d) If, at any time after giving written notice of its intention to register any shares of Public Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 6.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Public Company shall determine for any reason not to register such shares of Public Company Common Stock (or other securities, as applicable), the Public Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.16.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.16.1.
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Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever If the Company at any time proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 any Stock or any successor form thereto, (ii) on Form S-8 security convertible into or any successor form thereto, (iii) on a Shelf Registration Statement exchangeable or (iv) pursuant to Section 4.1) (a “Piggyback Registration”)exercisable for Stock, whether or not for sale for its own account or and other than pursuant to a Demand Registration (it being understood that an Investor may include its Registrable Stock in a registration effected pursuant to a Demand Registration in accordance with Section 5(a)), on a form and in a manner which would permit registration of the Registrable Stock held by an Investor for sale to the account of otherspublic under the Securities Act, the Company shall give all Demand Shareholders prompt written notice thereof of the proposed registration to each Investor not later than thirty (but not less than 30) days prior to the filing thereof. Each Investor shall have the right to request that all or any part of its Registrable Stock be included in such registration. Each Investor can make such a request by giving written notice to the Company within ten (10) Business Days prior to after the filing by receipt of the Company’s notice of the proposed registration; provided, however, that if the registration is an underwritten registration and there is an Underwriter Cutback, the Company with the Commission of any will include in such registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify only the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company securities that, in its opinion, the inclusion reasonable opinion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” underwriter or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) underwriters can be sold without such an effecthaving a material adverse effect on the success of the offering, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) follows: first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the securities which the Company as the Company, in its reasonable judgment, shall have determined, (B) proposes to sell; second, the Registrable Securities Stock of Piggyback Sellerssuch Investors, pro rata among all such Investors on the basis of the number relative percentage of Registrable Securities proposed Stock then held by all Investors who have requested that Registrable Stock owned by them be so included (it being further agreed and understood, however, that such underwriters shall have the right to be sold by such Piggyback Sellers, (C) eliminate entirely the participation of the Investors); and third, shares the comparable securities of Company Common Stock sought any additional holders of the Company’s securities (including any such securities held by current or former officers or employees of or consultants to be registered by Other Demanding Sellersthe Company), pro rata among all such holders on the basis of the number relative percentage of shares such securities then held by all such holders who have requested that securities owned by them be so included. For purposes of Company Common Stock proposed any Underwriter Cutback pursuant to be sold by such Other Demanding Sellers and (D) fourththis Section 5(b), other shares of Company Common all Registrable Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Investor shall also include any Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by the partners, retired partners, shareholders or Affiliates of such Investor, or the estates and family members of any Other Proposed Sellers.
(c) For claritysuch Investor or such partners or retired partners, any trusts for the benefit of any of the foregoing Persons and, at the election of such Investor or such partners, retired partners, trusts or Affiliates, any Charitable Organization to which any of the foregoing shall have contributed Registrable Stock prior to the execution of the underwriting agreement in connection with such underwritten registration, and such Investor and other Persons shall be deemed to be a single selling Investor, and any Underwritten Offering under pro rata reduction with respect to such Investor shall be based upon the aggregate amount of securities proposed to be sold by all entities and individuals included in such selling Investor, as defined in this Section 4.2 sentence. Registrable Stock proposed to be registered and sold pursuant to an underwritten offering for the Company’s accountaccount of any Investor shall be sold to the prospective underwriters, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts on the terms and subject to the conditions of one or more underwriting agreements negotiated between the underwriting as agreed upon between holders of Registrable Stock to which such Registration Statement relates, the Company and the prospective underwriters. Any Investor who holds Registrable Stock being registered in any offering shall have the right to receive a copy of the form of underwriting agreement and shall have an opportunity to hold discussions with the lead managing underwriter(s), which shall be selected by underwriter of the Company.
(d) If, terms of such underwriting agreement. The Company may withdraw any Registration Statement at any time after giving written notice before it becomes effective, or postpone or terminate the offering of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior without obligation or liability to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1Investor.
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Piggyback Registrations. (a) From and after the date hereofIf, subject at any time prior to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are Effective Date of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) filed pursuant to Section 4.11.1(a) of this Agreement, the Company shall determine to register for sale with the SEC any of its Common Stock or securities convertible into, or exchangeable or exercisable for, shares of its Common Stock other than for resale by the Investor (a “"Piggyback Registration”"), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt the Investor written notice thereof (but not less than ten (10a "Notice of Piggyback Registration") Business Days 30 calendar days prior to the filing by the Company with the Commission of any a registration statement with respect thereto). Such relating to such Piggyback Registration, which notice shall include a description of (a “Piggyback Notice”i) shall specify the intended method of distribution of such Common Stock and such other securities, (ii) the number of shares of Company Common Stock (or and such other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by securities the Company intends to register, and (iii) such other Persons who will or have a right to participate in the Piggyback Registration. Upon the written request of the proposed minimum offering price Investor made within 20 days after receipt of such shares a Notice of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests request shall specify the number of Registrable Securities requested intended to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) Investor and the Company that, in its opinion, the inclusion intended method of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”distribution thereof), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable relating to such Piggyback Registration only such securities as all Registrable Securities that the Company is has been so advised requested to register by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if Investor. If the Piggyback Registration relates to for which the Company gives a Notice of Piggyback Registration is a registered public offering involving an offering for underwriting, and the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold underwriters selected by the Company as advise the Company, Company in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata writing that marketing factors require a limitation on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed or other securities to be sold by such Other Demanding Sellers and (D) fourthunderwritten, other shares of the Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if shall reduce the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securitiessecurities included in such registration (1) first, as applicable) sought by reducing the number of shares of Common Stock or other securities to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered for resale by all Persons other than the Investor, allocated among such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on Persons in accordance with the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.priorities
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Piggyback Registrations. (a) From and Whenever after the date hereof, subject of this Agreement and prior to the terms and conditions hereof, whenever Registration Termination Date the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) Share Capital under the Securities Act (other than on a registration by the Company (i) statement on Form S-4 X-0, X-0, X-0 or F-4) for its own account, and the form of registration statement to be used may be used for any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) registration of Registrable Shares (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission CD&R Investor of any registration statement with respect theretoits intention to effect such a Piggyback Registration and, subject to Section 4.02(b). Such notice (a “Piggyback Notice”) , shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of include in such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum in any offering price of to be made pursuant to such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration registration statement all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) Shares with respect to which the Company has received a written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) request for inclusion therein from CD&R Investor within ten (10) three days after receipt of the Company’s notice. The Company shall have no obligation to proceed with any Piggyback Registration and may abandon, terminate and/or withdraw such Piggyback Notice is received by Registration for any reason at any time prior to the pricing thereof provided, however, that any such abandonment, termination or withdrawal shall not prejudice the rights of CD&R Investor to make a Demand Registration request or a Shelf Registration request pursuant to the terms of this Agreement. If the Company or any other Person other than CD&R Investor proposes to sell Shares in any Underwritten Offering pursuant to a Registration Statement on Form F-3 or Form S-3 under the Securities Act, such offering shall be treated as a primary or secondary Underwritten Offering pursuant to a Piggyback SellerRegistration.
(b) If, in connection with Subject to Section 4.02(c) if a Piggyback Registration that involves is initiated as an Underwritten Offering, the lead managing underwriter(s) advise(s) Offering on behalf of the Company that, and the managing underwriters advise the Company that in its opinion, their good faith opinion the inclusion amount of all the securities sought Share Capital proposed to be included in such Piggyback Registration by offering exceeds the amount of Share Capital (iof any class) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered which can be sold in such Piggyback Registration pursuant offering without materially delaying or jeopardizing the success of the offering (including the price per share of the Shares proposed to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) be sold in such registration (such Persons being “Other Demanding Sellers”offering), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
offering (i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number the amount of shares of Company Common Stock (or other securities, as applicable) to be sold by Share Capital the Company as the Company, in its reasonable judgment, shall have determinedproposes to issue, (Bii) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed Shares that CD&R Investor and its Affiliates propose to be sold by sell in such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellersoffering.
(c) For clarity, in connection with If any Piggyback Registration is a primary Underwritten Offering under this Section 4.2 for the Company’s accountOffering, the Company shall not be required have the right to include select the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless managing underwriter or underwriters to administer any such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Companyoffering.
(d) If, at any time after giving written notice of its intention If a registration requested pursuant to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and 4.02 involves an underwritten public offering, CD&R Investor may elect, in writing at least two Business Days prior to the time effective date of the registration statement Registration Statement filed in connection with such Piggyback Registration is declared effectiveregistration, the Company shall determine for any reason not to withdraw its request to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, registration and shall be permitted to withdraw from such registration by written notice to the Company if permitted the price to the public at which the Registrable Shares are proposed to be sold will be less than 90% of the average closing price of the class of shares being sold in the offering during the 10 trading days preceding the date on which the notice of such offering was given to CD&R Investor pursuant to this Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.14.02.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereofIf at any time following an IPO, subject to the terms and conditions hereof, whenever the Company NewCo proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) for sale by NewCo under the Securities Act any of its equity securities (other than a registration by the Company (i) on Form S-4 or any successor form theretoForm S-8, (ii) on Form S-8 or any successor form theretoor similar forms or a Piggyback Registration), (iii) on a Shelf Registration Statement or (iv) any shares of NewCo Shares of FPC pursuant to a Demand Registration under Section 4.1) 3.1.2, in a manner that would permit registration of Registrable Securities for sale to the public under the Securities Act, NewCo will each such time promptly give written notice to all Shareholders who beneficially own any Registrable Securities of its intention to do so, of the registration form of the SEC that has been selected by NewCo and of such holders’ rights under this Section 3.1 (the “Piggyback Notice”). NewCo will use its reasonable best efforts to include, and to cause the underwriter or underwriters, if applicable, to include, in the proposed offering, on the same terms and conditions as the securities of NewCo included in such offering, all Registrable Securities that NewCo has been requested in writing, within 15 calendar days after the Piggyback Notice is given, to register by the Shareholders thereof (each such registration pursuant to this Section 3.1.1, a “Piggyback Registration”); provided, whether for its own account or for the account of othershowever, the Company shall give all Demand Shareholders prompt written notice thereof that (but not less than ten (10a) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) Ifif, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 a Piggyback Notice and prior to the time effective date of the registration statement filed in connection with such Piggyback Registration is declared effectiveregistration, the Company NewCo shall determine for any reason not to register such shares equity securities (or, in the case of Company Common Stock (or other securitiesa Demand Registration, as applicableFPC thereof so determines), the Company NewCo may, at its electionelection (or, in the case of a Demand Registration, where FPC so determines, NewCo shall), give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon all Shareholders who beneficially own any Registrable Securities and, thereupon, shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback registration, and (b) in case of a determination by NewCo to delay registration of its equity securities (or, in the case of a Demand Registration; provided, thatFPC so determines) NewCo shall be permitted to (or, if permitted pursuant to Section 4.1, in the Demand Shareholders may continue the registration as case of a Demand Registration where FPC so determines, NewCo, for a period not to exceed 60 days, shall) delay the registration of such Registrable Securities for the same period as the delay in registering such other equity securities (provided that clauses (a) and (b) above shall not relieve NewCo of its obligations under Section 3.1.2). In the case of any registration of Registrable Securities in an underwritten offering pursuant to this Section 3.1.1, all Shareholders proposing to distribute their securities pursuant to this Section 3.1.1 shall, at the terms request of NewCo (or, in the case of a Demand Registration, FPC), enter into an agreement in customary form with the underwriter or underwriters selected by NewCo (or, in the case of a Demand Registration, selected in accordance with Section 4.13.1.2). Notwithstanding the foregoing, following an IPO, NewCo shall not be obligated to effect registration of Registrable Securities for which Piggyback Registration is requested by a Shareholder if, at the time of such request, all such Registrable Securities are eligible for sale to the public by the requesting Shareholder without registration under Rule 144, with such sale not being limited by the volume restrictions thereunder.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever If the Company proposes shall determine to ----------------------- register for sale with the SEC any Company of its Common Stock (or any other securities that are of the same class convertible into, or series as any Registrable Securities that are not exchangeable or exercisable for, shares of Company its Common Stock) under the Securities Act (Stock other than a registration for resale by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) Investor (a “"Piggyback --------- Registration”"), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt the Investor written notice ------------ thereof (but not less than ten (10a "Notice of Piggyback Registration") Business Days 30 calendar days -------------------------------- prior to the filing by the Company with the Commission of any a registration statement with respect thereto). Such relating to such Piggyback Registration, which notice shall include a description of (a “Piggyback Notice”i) shall specify the intended method of distribution of such Common Stock and such other securities, (ii) the number of shares of Company Common Stock (or and such other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by securities the Company intends to register, and (iii) such other Persons who will or have a right to participate in the Piggyback Registration. Upon the written request of the proposed minimum offering price Investor made within 20 days after receipt of such shares a Notice of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests request shall specify the number of Registrable Securities requested intended to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) Investor and the Company that, in its opinion, the inclusion intended method of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”distribution thereof), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable relating to such Piggyback Registration only such securities as all Registrable Securities that the Company is has been so advised requested to register by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if Investor. If the Piggyback Registration relates to for which the Company gives a Notice of Piggyback Registration is a registered public offering involving an offering for underwriting, and the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold underwriters selected by the Company as advise the Company, Company in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata writing that marketing factors require a limitation on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed or other securities to be sold by such Other Demanding Sellers and (D) fourthunderwritten, other shares of the Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if shall reduce the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securitiessecurities included in such registration (1) first, as applicable) sought by reducing the number of shares of Common Stock or other securities to be registered for resale by each Other Demanding Seller all Persons other than the Investor, allocated among such Persons in accordance with the priorities then existing among the Company and such Persons and (2) second, by reducing on a pro rata in proportion to basis the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number shares of Registrable Securities proposed requested to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold included by the Company and (D) fourth, Investor. Any other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarityStock, in connection with any Underwritten Offering under this Section 4.2 for the Company’s accountRegistrable Securities, or other securities of the Company so excluded shall be withdrawn from and shall not be required to include the Registrable Securities of a Piggyback Seller included in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the CompanyRegistration.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Samples: Registration Rights Agreement (Dauphin Technology Inc)
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever Whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Equity Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 pursuant to a Shelf Registration or any successor form theretoa Demand Registration, (ii) pursuant to a Registration Statement on Form S-8 (or other registration solely relating to an offering or sale to employees or directors of the Company pursuant to any successor form theretoemployee stock plan or other employee benefit arrangement), (iii) on pursuant to a Shelf Registration Statement on Form S-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto) or (iv) pursuant to Section 4.1) (a “Piggyback Registration”in connection with any dividend or distribution reinvestment or similar plan), whether for its own account or for the account of othersone or more stockholders of the Company (other than the Holders of Registrable Securities) (a “Piggyback Registration”), the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten and in any event within five (105) Business Days prior Days) to the filing by the Company with the Commission each Holder of any Registrable Securities of its intention to effect such a registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securitiesand, as applicable) proposed subject to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicableSection 6(b), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Statement and in any offering of Equity Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the be made pursuant to such Registration Statement that number of Registrable Securities requested to be disposed of sold in such offering by such Piggyback Seller) Holder for the account of such Holder, provided that the Company has received a written request for inclusion therein within ten (10) days after from such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other Holder no later than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon after the date on which the Company has given notice of the Piggyback Registration to Holders. The Company may terminate or withdraw a Piggyback Registration prior to the effectiveness of such registration at any time in its sole discretion. If a Piggyback Registration is effected pursuant to a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Piggyback Shelf Registration Statement”), the Holders of Registrable Securities shall be relieved notified by the Company of its obligation and shall have the right, but not the obligation, to register participate in any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted offering pursuant to Section 4.1such Piggyback Shelf Registration Statement (a “Piggyback Shelf Takedown”), the Demand Shareholders may continue the registration as a Demand Registration pursuant subject to the terms of Section 4.1same limitations that are applicable to any other Piggyback Registration as set forth above.
Appears in 1 contract
Samples: Registration Rights Agreement (Key Energy Services Inc)
Piggyback Registrations. (a) From and Until that date that is five (5) years after the date hereofof this Agreement, subject to the terms and conditions hereof, whenever if the Company proposes to register any Company Common Stock (or any other of its securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company pursuant to (i) a Demand Registration or an Additional Shelf Registration pursuant to the Registration Rights Agreements, (ii) a registration on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form theretoform, (iii) on a Shelf Registration Statement an offering of securities in connection with an employee benefit, stock dividend, stock ownership or (iv) pursuant dividend reinvestment plan), and the registration form to Section 4.1) be used may be used for the registration of Registrable Securities (a “"Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b"), the Company shall will give prompt written notice to all holders of Registrable Securities of its intention to effect such a registration (each a "Piggyback Notice") and, subject to Sections 5(c) and 5(d) below, the Company will include in each such Piggyback Registration registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests for inclusion therein within 15 days after the date of sending of the Company's notice (which written requests the "Included Registrable Securities"); provided, however, that, at the Company's option, the Company may file a separate registration statement for, and with respect to, Included Registrable Securities in satisfaction of the Company's obligation hereunder; provided, further, that the price per share under and terms of the separate registration statement shall specify be no less favorable than the price per share and terms of the Piggyback Registration.
(b) The Company will pay all Registration Expenses in connection with the Piggyback Registrations.
(c) If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner within a price range acceptable to the Company, the Company will include in such registration (i) first, the securities the Company proposes to sell and (ii) second, the Registrable Securities requested to be disposed of by included in such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the and any other securities sought requested to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellersregistration, pro rata on among the basis of the number holders of Registrable Securities proposed to be sold by requesting such Piggyback Sellers, (C) third, shares registration and the holders of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata such other securities on the basis of the number of shares of Company Common Stock proposed to be sold owned by each such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; orholder.
(iid) if the If a Piggyback Registration relates to is an offering underwritten secondary registration on behalf of holders of the Company's securities other than for the Company’s own accountholders of Registrable Securities, then (A) first, such number of shares of and the managing underwriters advise the Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to writing that in their opinion the number of securities sought requested to be registered included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the holders initially requesting such registration, the Company will include in such registration first, all of the securities requested to be included therein by all the holders initially requesting such Other Demanding Sellers, (B) registration and second, the Registrable Securities of Piggyback Sellers, requested to be included in such registration pro rata among the holders of such Registrable Securities on the basis of the number of Registrable Securities proposed to be sold shares owned by each such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellersholder.
(ce) For clarity, in connection with any Underwritten Offering under this Section 4.2 for In the Company’s accountcase of an underwritten Piggyback Registration, the Company shall not be required will have the right to include select the Registrable Securities of a Piggyback Seller in investment banker(s) and manager(s) to administer the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Companyoffering.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Sun Communities Inc)
Piggyback Registrations. (a) From and after the date hereofexpiration of the Initial Open Market Shares Restricted Period, the Additional Open Market Shares Restricted Period, the Warrant 1 Shares Restricted Period, and/or the Warrant 2 Shares Restricted Period, as applicable, subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(iA) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(iiB) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Samples: Framework Agreement (Walgreen Co)
Piggyback Registrations. (a) From On and after the date hereofclosing of the underwritten initial public offering of the Common Stock, subject to as long as the terms and conditions hereofHolders hold any Registrable Stock, whenever if the Company proposes to register any Company Common Stock (of its common equity securities or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) convertible into its common equity securities under the Securities Act whether or not for its own account (other than a registration by the Company pursuant to (i) a registration on Form S-4 or any successor form theretoform, or (ii) on Form S-8 an offering of securities in connection with an employee benefit, share dividend, share ownership or any successor dividend reinvestment plan) and the registration form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or be used may be used for the account registration of othersRegistrable Stock, the Company shall give all Demand Shareholders prompt written notice thereof to all Holders of its intention to effect such a registration (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (each a “"Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any") and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case subject to the extent then known. Subject to Section 4.2(b)subparagraph 3(c) below, the Company shall include in each such Piggyback Registration registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) Stock with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such the date of receipt of the Piggyback Notice is received by (a "Piggyback Registration"), unless, in the case of an underwritten Piggyback Registration, the managing underwriters advise the Company in writing that in their opinion, the 4 SERIES AA REG. RIGHTS AGREE. inclusion of Registrable Stock would adversely interfere with such Piggyback Selleroffering. Nothing herein shall affect the right of the Company to withdraw any such registration in its sole discretion.
(b) If, in connection with If a Piggyback Registration that involves an Underwritten Offering, is a primary underwritten registration and the lead managing underwriter(s) advise(s) underwriters advise the Company in writing that, in its their opinion, the inclusion number of all the securities sought requested to be included in such Piggyback Registration by registration exceeds the number which can be sold in an orderly manner within a price range acceptable to the Company, the Company will include in such registration (i) first, the Company, securities the Company proposes to sell and (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”)second, (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) requested to be sold included therein by the Company as Holders and the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback SellersSeries CC Holders, pro rata among such Holders and Series CC Holders on the basis of the number of Registrable Securities proposed securities requested to be sold included in such registration by each such Piggyback SellersHolder or Series CC Holder, and (Ciii) third, shares of Company Common Stock sought any securities requested to be registered included in such Registration by Other Demanding Sellersany other holders that have piggyback rights, subject to reduction as provided in the agreements granting registration rights to such holders.
(c) If a Piggyback Registration is a secondary registration requested by other holders of the Company's securities and, if the Piggyback Registration is an underwritten Piggyback Registration and the managing underwriters advise the Company in writing that, in their opinion, the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the holders initially requesting such registration, the Company will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, the Holders and the Series CC Holders, pro rata among such holders requesting such registration. Holders, and Series CC Holders on the basis of the number of shares of Company Common Stock proposed to be sold of the Company requested for inclusion in such registration by each such Other Demanding Sellers holder requesting registration, Holder, or Series CC Holder and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if second, the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought securities requested to be registered included therein by each Other Demanding Seller pro rata in proportion to the number of securities sought any other holders with piggyback rights requested to be registered included in such registration, subject to reduction as provided in the agreements granting registration rights to such holders.
(d) In the case of an underwritten Piggyback Registration, the Company will have the right to select the investment banker(s) and manager(s) to administer the offering. If requested by all the underwriters for any underwritten offerings by Holders, under a registration requested pursuant to Section 2(a) the Company will enter into a customary underwriting agreement with such Other Demanding Sellersunderwriters for such offering, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by contain such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold representations and warranties by the Company and such other terms which are customarily contained in agreements of this type (D) fourthincluding indemnification provisions). The Holders shall be a party to such underwriting agreement and may, other shares at their option, require that any or all of Company Common Stock proposed the conditions precedent to the obligations of such underwriters under such underwriting agreement be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for conditions precedent to the Company’s account, the Company obligations of Holders. The Holders shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between make any representations or warranties to or agreement with the Company or the underwriters other than representations, warranties or agreements regarding the Holders and the lead managing underwriter(s), which shall be selected Holders' intended method of distribution and any other representations or warranties required by the Companylaw.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Samples: Registration Rights Agreement (Commvault Systems Inc)
Piggyback Registrations. (a) From and after If, other than pursuant to Sections 6.18, Buyer proposes or is required to file a registration statement under the date hereof, subject Securities Act with respect to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other an offering of securities that are of the same class or series as any Registrable Securities that are Securities, whether or not shares of Company Common Stock) under the Securities Act for sale for its own account (other than a registration by the Company statement (i) on Form S-4 X-0, Xxxx X-0 or any successor form thereto, forms thereto or (ii) on Form S-8 filed solely in connection with any employee benefit or any successor form theretodividend reinvestment plan) then the Buyer shall give prompt written notice of such proposed filing at least 15 days before the anticipated filing date (the “Piggyback Notice”) to the Seller (and each of its transferees, the Seller and each transferee being hereinafter referred to as a “Holder”). The Piggyback Notice shall offer the Holders the opportunity to include in such registration statement the number of Registrable Securities (iiifor purposes of this Section 6.19, “Registrable Securities” shall be deemed to mean solely securities of the same type as those proposed to be offered by the Company for its own account) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) as they may request (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b)6.19(b) hereof, the Company Buyer shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company Buyer has received written requests for inclusion therein within 15 days after notice has been given to the Holders. The Holders shall be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration at any time at least 2 Business Days prior to the effective date of the Registration Statement relating to such Piggyback Registration. The Buyer shall be required to maintain the effectiveness of the Registration Statement for a Piggyback Registration for a period of 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold.
(which written requests b) If any of the securities to be registered pursuant to the registration giving rise to the Holders’ rights under this Section 6.19 are to be sold in an underwritten offering, the Holders shall specify the number of be permitted to include all Registrable Securities requested to be disposed of by included in such Piggyback Seller) for inclusion therein within ten (10) days after registration in such Piggyback Notice is received by offering on the same terms and conditions as any Other Securities included therein; provided however, that if such Piggyback Seller.
(b) If, in connection with offering involves a Piggyback Registration that involves an Underwritten Offering, firm commitment underwritten offering and the lead managing underwriter(s) advise(s) of such underwritten offering advise the Company thatHolders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with all other securities that the Buyer and any other Persons having rights to participate in its opinionsuch registration intend to include in such offering, exceeds the inclusion total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all the securities sought to such Other Securities, then there shall be included in such Piggyback Registration by (i) firm commitment underwritten offering the Company, (ii) other Persons who have sought to have shares number or dollar amount of Company Common Stock registered in Registrable Securities and such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include Securities that in the registration statement applicable to opinion of such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without so adversely affecting such an effectoffering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows and in the following order of priorityfollows:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be all Other Securities being sold by the Company Buyer or by any Person (other than a Holder) exercising a contractual right to demand registration (or priority piggyback registration pursuant to an agreement existing as of the Company, in its reasonable judgment, shall have determined, date hereof) pursuant to which such registration statement was filed;
(Bii) second, all Registrable Securities of Piggyback Sellersrequested to be included by the Holders, pro rata (if applicable), based on the basis of the number of Registrable Securities proposed to be sold Beneficially Owned by each such Piggyback Sellers, Holder; and
(Ciii) third, shares among any other holders of Other Securities requesting such registration, pro rata, based on the number of Other Securities Beneficially Owned by each such holder of Other Securities.
(c) No registration of Registrable Securities effected pursuant to a request under this Section 6.19 shall be deemed to have been effected pursuant to Section 6.18 or shall relieve the Company Common Stock sought of its obligations under Section 6.18.
(d) Seller may transfer or retain its rights and obligations under Sections 6.18 and 6.19 (in whole or in part) with respect to any Registrable Securities to any transferee (and any transferee may transfer or retain such rights and obligations with respect to any Registrable Securities to any subsequent transferee) without the prior written consent of the Buyer; provided, however, that the transferee must agree to be registered bound by Other Demanding Sellers, pro rata on the basis applicable terms of this Section 6.18 and 6.19 with respect to such Registrable Securities. Any such assignment shall be effective upon receipt by the Buyer of written notice from the transferring holder stating the name and address of any transferee and identifying the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on with respect to which the basis rights under this Agreement are being transferred together with such Registrable Securities and the nature of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellersrights so transferred.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on a registration statement on Form S-4 or any successor form thereto, (ii) a registration statement on Form S-8 or any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand the Piggyback Shareholders prompt written notice thereof (but not less than ten (10) Business Days business days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) underwriter or underwriters (if anyany and if known) and a good faith estimate by the Company of the proposed minimum offering price of such shares equity securities. Upon the written request of Company Common Stock any Person that on the date of the Piggyback Notice is a Piggyback Shareholder (or other securitieseach, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests request shall specify the number of Registrable Securities requested then presently intended to be disposed of by such Piggyback Seller) for inclusion therein given within ten (10) days after such Piggyback Notice is received by such Piggyback Seller, the Company, subject to the terms and conditions of this Agreement, shall use its reasonable best efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, a nationally recognized independent investment bank selected by the lead managing underwriter(sInitial Shareholder or any of its Permitted Transferees (to the extent a Shareholder hereunder), reasonably acceptable to the Company, and whose fees and expenses shall be borne solely by the Company) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock Sellers and securities sought to be registered by Other Demanding SellersSellers (if any), pro rata on the basis of the number of shares of Company Common Stock proposed to be sold held by such Piggyback Sellers and Other Demanding Sellers and (DC) fourththird, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, Sellers and Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold as determined by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the a holder’s Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any such underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the each Piggyback Sellers within five (5) Business Days thereof Shareholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand that Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after In addition to the date hereofagreements relating to the Shelf Registration Statement the Company agrees as follows:
(i) If at any time the Company proposes to file an additional registration statement under the Act with respect to an offering of Common Stock (x) for the Company=s own account (except pursuant to registrations on Form S-4 or any successor form, or Form S-8 or any successor form relating solely to securities issued pursuant to any benefit plan) or (y) for the account of any holders of Common Stock (other than the Noteholders or other holders of Notes or for the owners of Common Stock covered by Discount Noteholders Rights Agreement), then (A) the Company will give written notice of such proposed filing to the Noteholders as soon as practicable (but in no event less than 30 days before the anticipated filing date), (B) such notice will offer each Noteholder, subject to the terms and conditions hereof, whenever the Company proposes opportunity to register any Company request that such actions be taken under Rule 429 under the Act ("Rule 429") as will cause the prospectus contained in such additional registration statement (a "Noteholder Piggyback Registration Statement") to be available to permit the offer and sale, at such Noteholder's election, of some or all of the Transfer Restricted Securities owned by such Noteholder on the same terms and conditions as the Company's or such other holder's Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stocka "Noteholder Piggyback Sale"), and (C) under the Securities Act (other than a registration by the Company (i) will otherwise take such reasonable actions as will enable such Noteholder to effect a Noteholder Piggyback Sale on Form S-4 or any successor form thereto, such terms and conditions.
(ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b6(b), the Company shall include will take such actions as will be required under Rule 429 to cause the combined prospectus contained in each such Noteholder Piggyback Registration Statement to permit the offer and sale of all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Transfer Restricted Securities requested to be disposed of by such Piggyback Seller) for inclusion therein Noteholder within ten (10) 20 days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion receipt of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold notice given by the Company as the Companypursuant to Section 6(a)(i), in its reasonable judgmentclause (A), shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold covered by such Piggyback Sellerscombined prospectus; provided, (C) thirdhowever, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) Ifthat if, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 securities and prior to the time the registration statement filed in connection with effective date of such Noteholder Piggyback Registration is declared effectiveStatement, the Company shall will determine for any reason not to register or to delay registration of such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to each Noteholder and, thereupon, (i) in the Piggyback Sellers within five (5) Business Days thereof and thereupon shall case of a determination not to register, will be relieved of its any obligation to register cause any Registrable Transfer Restricted Securities to be covered by such combined prospectus, without prejudice, however, to the rights of any Noteholder to have its Transfer Restricted Securities continue to be included in the Shelf Registration Statement and (ii) in the case of a determination to delay registering, will be permitted to delay causing any Transfer Restricted Securities to be covered by the combined prospectus for the same period as the delay in registering such other securities.
(iii) If the offering pursuant to such Noteholder Piggyback Registration Statement is to be underwritten, then each Noteholder making a request for a Noteholder Piggyback Sale pursuant to this Section 6(a) must participate in such underwritten offering and will not be permitted to make any other offering in connection with such particular withdrawn registration. If the offering pursuant to such Noteholder Piggyback Registration Statement is to be on any other terms, then each Noteholder making a request for a Noteholder Piggyback Sale pursuant to this Section 6(a) must participate in such offering on such basis and will not be permitted to make an underwritten offering in connection with such registration. Each Noteholder will be permitted to withdraw all or abandoned part of such Noteholder=s Transfer Restricted Securities from coverage by a Noteholder Piggyback RegistrationRegistration Statement at any time prior to (but only prior to) the effective date thereof without prejudice to the rights of such Noteholder to have its Transfer Restricted Securities continue to be included in the Shelf Registration Statement.
(b) Notwithstanding anything contained herein, if the managing underwriter or underwriters of a sale or offering described in Section 6(a) pursuant to which a Noteholder has requested a Noteholder Piggyback Sale will advise the Company in writing that (x) the size of the offering that the Noteholders, the Company and any other holders intend to make or (y) the kind of securities that one or more Noteholders, the Company and such other holders intend to include in such offering are such that the success of the offering would be materially and adversely affected, then (A) if the size of the offering is the basis of such underwriter's advice, the amount of Transfer Restricted Securities to be offered for the account of any Noteholder will be reduced 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, however, that, if permitted pursuant to Section 4.1securities are being offered for the account of Persons other than the Company or such Noteholder, the Demand Shareholders may continue proportion by which the registration amount of such Transfer Restricted Securities intended to be offered for the account of any Noteholder is reduced will not exceed the proportion by which the amount of such securities intended to be offered for the account of such Persons is reduced; and (B) if the combination of securities to be offered is the basis of such underwriter's advice (1) the Transfer Restricted Securities to be included in such offering will be reduced as a Demand Registration pursuant described in clause (A) above (subject to the terms provision in clause (A)) or (2) if the actions described in sub-clause (1) of this clause (B) would, in the judgment of the managing underwriter, be insufficient to eliminate the adverse effect that inclusion of the Transfer Restricted Securities requested to be included would have on such offering, such Transfer Restricted Securities will be excluded from such offering, but only if all shares of Common Stock are also excluded. Any reduction in Transfer Restricted Securities to be included in an underwritten offering as contemplated by this Section 4.16(b) will be without prejudice to the Noteholders' rights to have their Transfer Restricted Securities continue to be included in the Shelf Registration Agreement.
Appears in 1 contract
Samples: Common Stock Registration Rights Agreement (Chesapeake Energy Corp)
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever If the Company proposes to register any Company shares of Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not convertible into shares of Company Common Stock) Stock under the Securities Act (other than a registration by the Company pursuant to (i) a registration on Form S-4 or any successor form theretoform, or (ii) on Form S-8 an offering of securities in connection with an employee benefit, share dividend, share ownership or any successor dividend reinvestment plan) and the registration form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or be used may be used for the account registration of othersRegistrable Shares, the Company shall will give all Demand Shareholders prompt written notice thereof to all holders of Registrable Shares of its intention to effect such a registration (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (each, a “"Piggyback Notice”") shall specify the number of shares of Company Common Stock (or other securitiesand, as applicable) proposed subject to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if anySection 11.1(b) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b)c) below, the Company shall will include in each such Piggyback Registration registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) Shares with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) 15 business days after such the date of sending the Piggyback Notice (a "Piggyback Registration"), unless, if the Piggyback Registration is received by not an underwritten offering, the Company in its reasonable judgment determines that, or in the case of an underwritten Piggyback Registration, the managing underwriters advise the Company in writing that in their opinion, the inclusion of Registrable Shares would adversely interfere with such Piggyback Selleroffering, affect the Company's securities in the public markets, or otherwise adversely affect the Company. Nothing herein shall affect the right of the Company to withdraw any such registration in its sole discretion.
(b) If, in connection with If a Piggyback Registration that involves is a primary registration on behalf of the Company and, if the Piggyback Registration is not an Underwritten Offeringunderwritten offering, the lead Company in its reasonable judgment determines that, or in the case of an underwritten Piggyback Registration, the managing underwriter(s) advise(s) underwriters advise the Company that, in its writing that in their opinion, the inclusion number of all the securities sought requested to be included in such Piggyback Registration by registration exceeds the number which can be sold in an orderly manner within a price range reasonably acceptable to the Company, the Company will include in such registration (i) first, the Company, securities the Company proposes to sell and (ii) other Persons who have sought second, the Registrable Shares requested to have shares of Company Common Stock registered be included in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) requested to be sold by the Company as the Company, included in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellerssuch registration, pro rata among the holders of Registrable Shares requesting such registration and the holders of such other securities on the basis of the number of Registrable Securities proposed securities requested for inclusion in such registration by each such holder.
(c) If a Piggyback Registration is a demand registration pursuant to the Subordinated Note Purchase Agreement between the Company and the Shareholder Purchasers named therein dated as of December 14, 2001 (the "Junior Subordinated Purchase Agreement) , and if such Piggyback Registration is not an underwritten offering, the Company determines that, or if such Piggyback Registration is an underwritten offering, the managing underwriters advise the Company in writing that in their opinion, the number of securities requested in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the holders requesting such registration, the Company will include in such registration (i) first, the securities requested to be sold included in such registration by such Piggyback Sellersthe holders of "Registrable Shares" (as defined in the Junior Subordinated Purchase Agreement), (Cii) third, shares of any securities the Company Common Stock sought proposes to sell and (iii) the Registrable Shares (as defined in this Agreement) requested to be registered by Other Demanding Sellersincluded in such registration and any other securities requested to be included in such registration, pro rata among the holders of Registrable Shares (as defined in this Agreement) requesting such registration and the holders of such other securities on the basis of the number of shares of Company Common Stock proposed to be sold requested for inclusion in such registration by each such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; orholder.
(iid) If a Piggyback Registration is a secondary registration other than as described in Section 11.1(c) on behalf of holders of the Company's securities other than the holders of Registrable Shares, and, if the Piggyback Registration relates to is not an offering other than for underwritten offering, the Company’s own accountCompany determines that, then (A) firstor in the case of an underwritten Piggyback Registration, such number of shares of the managing underwriters advise the Company Common Stock (or other securitiesin writing that in their opinion, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought requested to be registered included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the holders initially requesting such registration, the Company will include in such registration the securities requested to be included therein by all the holders requesting such Other Demanding Sellers, (B) second, registration and the Registrable Securities of Piggyback SellersShares requested to be included in such registration, pro rata among the holders of securities requesting such registration on the basis of the number of Registrable Securities proposed securities requested for inclusion in such registration by each such holder.
(e) In the case of an underwritten Piggyback Registration, the Company will have the right to be sold select the investment banker(s) and manager(s) to administer the offering. If requested by the underwriters for any underwritten offerings by Registered Holders, under a registration requested pursuant to Section 11.1(a), the Company will enter into a customary underwriting agreement with such Piggyback Sellersunderwriters for such offering, (C) third, shares of Company Common Stock to be sold which agreement shall contain such representations and warranties by the Company and (D) fourthsuch other terms which are customarily contained in agreements of this type. The Registered Holders requesting registration shall be a party to such underwriting agreement and may, other shares at their option, require that any or all of Company Common Stock proposed the conditions precedent to the obligations of such underwriters under such underwriting agreement also be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for conditions precedent to the Company’s account, the Company obligations of Registered Holders. The Registered Holders shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between make any representations or warranties to or agreement with the Company or the underwriters other than representations, warranties or agreements regarding the Registered Holders and the lead managing underwriter(s), which shall be selected Registered Holders' intended method of distribution and any other representation or warranties required by the Companylaw.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Samples: Subordinated Note Purchase Agreement (Travis Boats & Motors Inc)
Piggyback Registrations. (a) From and after For a period of five (5) years following the date hereof, subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are Effective Time of the same class or series as any Merger, the Buyer agrees that it shall notify each of the SNIH Stockholders who is a holder of Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback NoticeHolder”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein writing within ten (10) calendar days after prior to the anticipated filing date for any registration statement under the Securities Act for purposes of effecting an offering of securities of the Buyer (including, but not limited to, registration statements relating to primary and secondary offerings of securities of the Buyer filed on Form S-1 or Form S-3 or any similar or successor form to such Piggyback Notice is received by forms, but excluding registration statements filed on Form S-8 and Form S-4 or any similar or successor form to such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought forms or any other registration statements relating to be included in such Piggyback Registration by (i) the Company, any employee benefit plan or (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” a corporate reorganization, merger or other incidental acquisition or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) non-convertible debt securities) and will afford each such Holder an opportunity to include (“piggy back”) in such registration statement all or any part of the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (Registrable Securities then held by such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall Holder. Each such Holder desiring to include in the any such registration statement applicable to such Piggyback Registration only such securities as all or any part of the Company is so advised Registrable Securities held by such lead managing underwriter(sHolder shall, within five (5) can be sold without such an effectcalendar days after receipt of the above-described notice from the Buyer, as follows so notify the Buyer in writing, and in such notice shall inform the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis Buyer of the number of Registrable Securities such Holder wishes to include in such registration statement. Holders of Registrable Securities (i) agree to keep confidential the knowledge and information received from the Buyer, prior to actual notice to the public, of any securities registration statement to be filed by the Buyer as it will be considered material non-public information and, as such (ii) not to trade in the Registrable Securities of Buyer in any manner whatsoever and under any exemption from registration until such time as the registration statement is filed with the SEC and becomes effective. If a Holder decides not to include all of its Registrable Securities in any registration statement filed by the Buyer, such Holder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent registration statement or registration statements as may be filed by the Buyer with respect to offerings of its securities, all upon the terms and conditions set forth herein.
(b) If a registration statement under which the Buyer gives notice under this Section is for an underwritten offering, then the Buyer shall so advise the Holders of Registrable Securities. In such event, the right of any such Holder’s Registrable Securities to be included in a registration pursuant to this Section shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the managing underwriter or underwriter(s) selected by the Buyer for such underwriting. Notwithstanding the foregoing, if the managing underwriter(s) determine(s) in good faith that equity market conditions and marketing factors (including but not limited to a determination that the shares proposed to be included in the underwriting cannot be sold by such Piggyback Sellers, (Cin an orderly manner at a price that is acceptable to the Buyer) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis require a limitation of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own accountunderwritten, then the managing underwriter(s) may exclude shares (Aincluding Registrable Securities) firstfrom the registration and the underwriting, such and the number of shares that may be included in the registration and the underwriting shall be allocated, first, to the Buyer, and second, to all Holders of Company Common Stock securities having piggyback registration rights (or other securities, as applicableincluding Holders of Registrable Securities) sought to be registered by each Other Demanding Seller requesting inclusion of their securities in such registration statement on a pro rata in proportion to basis based on the total number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities for which registration was requested. If any Holder disapproves of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the underwriting as agreed upon between the Company Buyer and the lead managing underwriter(s)underwriter, which shall be selected by the Company.
delivered at least ten (d10) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and business days prior to the time Effective Time of the registration statement filed in connection with statement. Any Registrable Securities excluded or withdrawn from such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon underwritten offering shall be relieved of its obligation to register any Registrable Securities in connection with excluded and withdrawn from such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1registration.
Appears in 1 contract
Samples: Merger Agreement (GEE Group Inc.)
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever Each time the Company proposes to register any Company Common Stock of its equity securities (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stockthan pursuant to an Excluded Registration) under the Securities Act for sale to the public (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of othersthe Company or the account of any securityholder of the Company) and the form of registration statement to be used permits the registration of Registrable Securities, the Company shall give all Demand Shareholders prompt written notice thereof to each Investor, Rollover Stockholder and Employee Stockholder who holds Registrable Securities (but collectively the “Piggyback Holders”) (which notice shall be given not less than ten (10) Business Days 30 days prior to the filing by effective date of the Company’s registration statement), which notice shall offer each such Piggyback Holder the opportunity to include any or all of its or his Registrable Securities in such registration statement, subject to the limitations contained in Section 4.02(b) hereof. Each Piggyback Holder who desires to have its or his Registrable Securities included in such registration statement shall so advise the Company with the Commission of any registration statement with respect thereto). Such notice in writing (a “Piggyback Notice”) shall specify stating the number of shares of Company Common Stock (or other securities, as applicable) proposed desired to be registered, ) within 20 days after the proposed date of filing such notice from the Company. Any Piggyback Holder shall have the right to withdraw such Piggyback Holder’s request for inclusion of such Piggyback Holder’s Registrable Securities in any registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(spursuant to this Section 4.02(a) (if any) and a good faith estimate by giving written notice to the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then knownwithdrawal. Subject to Section 4.2(b)4.02(b) below, the Company shall include in each such Piggyback Registration registration statement all such Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect so requested to which be included therein; provided, however, that the Company has received written requests may at any time withdraw or cease proceeding with any such registration if it shall at the same time withdraw or cease proceeding with the registration of all other equity securities originally proposed to be registered.
(which written requests shall specify b) If the number managing underwriter advises the Company that the inclusion of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, included in connection with the registration statement would cause a Piggyback Registration that involves an Underwritten OfferingMaterial Adverse Effect, the lead managing underwriter(s) advise(sCompany will be obligated to include in the registration statement, as to each Requesting Holder and Piggyback Holder, only a portion of the shares such Holder has requested be registered equal to the product of: (i) the Company that, in its opinion, ratio which such Holder’s requested shares bears to the inclusion total number of all the securities sought shares requested to be included in such Piggyback Registration registration statement by all Persons (iincluding Requesting Holders) the Company, who have requested (pursuant to contractual registration rights) that their shares be included in such registration statement; and (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the maximum number of Registrable Securities proposed that the managing underwriter advises may be sold in an offering covered by the registration statement without a Material Adverse Effect. If as a result of the provisions of this Section 4.02(b) any Holder shall not be entitled to include all their Registrable Securities in a registration that such Holder has requested to be sold by so included, such Piggyback Sellers, Holder may withdraw such Holder’s request to include their Registrable Securities in such registration statement. No Person may participate in any registration statement hereunder unless such Person (Ci) third, shares of Company Common Stock sought agrees to be registered by Other Demanding Sellers, pro rata sell such person’s Registrable Securities on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by provided in any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold underwriting arrangements approved by the Company and (Dii) fourthcompletes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other shares documents, each in customary form, reasonably required under the terms of Company Common Stock proposed such underwriting arrangements; provided, however, that no such Person shall be required to be sold by make any Other Proposed Sellers.
(c) For clarity, representations or warranties in connection with any Underwritten Offering under this Section 4.2 for the Companysuch registration other than representations and warranties as to (A) such Person’s account, the Company shall not be required to include the ownership of his or its Registrable Securities to be sold or transferred free and clear of a Piggyback Seller in the Underwritten Offering unless all liens, claims and encumbrances, (B) such Piggyback Seller accepts the terms of the underwriting Person’s power and authority to effect such transfer and (C) such matters pertaining to compliance with securities laws as agreed upon between the Company and the lead managing underwriter(s), which shall may be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registrationreasonably requested; provided, thatfurther, if permitted however, that the obligation of such Person to indemnify pursuant to Section 4.1any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the Demand Shareholders may continue liability of each such Person will be in proportion to, and provided, further, that such liability will be limited to the registration as a Demand Registration net amount received by such Person from the sale of his or its Company Securities pursuant to the terms of Section 4.1such registration.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act for its own account or for the account of other persons who are not Demand Stockholders (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on if the Registrable Securities are then registered pursuant to a Shelf Registration Statement or (iv) pursuant to Section 4.11.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders Stockholders prompt written notice thereof (but not less than ten (10) Business Days days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable)Stock, in each case to the extent then known. Subject to Section 4.2(b1.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders Stockholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) advises the Company that, in its opinion, the inclusion of all the securities shares of Company Common Stock sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities shares of Company Common Stock as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities shares of Company Common Stock proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account1.2, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 1.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable)Stock, the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the that Demand Shareholders Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.11.1.
Appears in 1 contract
Samples: Registration Rights Agreement (Fidelity National Information Services, Inc.)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on -19- Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten five (105) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten five (105) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (iw) the Company, (iix) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iiiy) the Piggyback Sellers and (ivz) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Samples: Stockholders Agreement (Atlas Air Worldwide Holdings Inc)
Piggyback Registrations. (a) From April 30, 2002 and after the date hereofuntil May 1, subject to the terms and conditions hereof2009, whenever if the Company proposes to register any Company Common Stock (or any other of its securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company pursuant to (i) a Demand Registration or an Additional Shelf Registration pursuant to the Registration Rights Agreements, (ii) a registration on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form theretoform, (iii) on a Shelf Registration Statement an offering of securities in connection with an employee benefit, stock dividend, stock ownership or (iv) pursuant dividend reinvestment plan), and the registration form to Section 4.1) be used may be used for the registration of Registrable Securities (a “"Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b"), the Company shall will give prompt written notice to all holders of Registrable Securities of its intention to effect such a registration (each a "Piggyback Notice") and, subject to Sections 5(c) and 5(d) below, the Company will include in each such Piggyback Registration registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests for inclusion therein within 15 days after the date of sending of the Company's notice (which written requests the "Included Registrable Securities"); provided, however, that, at the Company's option, the Company may file a separate registration statement for, and with respect to, Included Registrable Securities in satisfaction of the Company's obligation hereunder; provided, further, that the price per share under and terms of the separate registration statement shall specify be no less favorable than the price per share and terms of the Piggyback Registration.
(b) The Company will pay all Registration Expenses in connection with the Piggyback Registrations.
(c) If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner within a price range acceptable to the Company, the Company will include in such registration (i) first, the securities the Company proposes to sell and (ii) second, the Registrable Securities requested to be disposed of by included in such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the and any other securities sought requested to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellersregistration, pro rata on among the basis of the number holders of Registrable Securities proposed to be sold by requesting such Piggyback Sellers, (C) third, shares registration and the holders of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata such other securities on the basis of the number of shares of Company Common Stock proposed to be sold owned by each such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; orholder.
(iid) if the If a Piggyback Registration relates to is an offering underwritten secondary registration on behalf of holders of the Company's securities other than for the Company’s own accountholders of Registrable Securities, then (A) first, such number of shares of and the managing underwriters advise the Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to writing that in their opinion the number of securities sought requested to be registered included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the holders initially requesting such registration, the Company will include in such registration first, all of the securities requested to be included therein by all the holders initially requesting such Other Demanding Sellers, (B) registration and second, the Registrable Securities of Piggyback Sellers, requested to be included in such registration pro rata among the holders of such Registrable Securities on the basis of the number of Registrable Securities proposed to be sold shares owned by each such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellersholder.
(ce) For clarity, in connection with any Underwritten Offering under this Section 4.2 for In the Company’s accountcase of an underwritten Piggyback Registration, the Company shall not be required will have the right to include select the Registrable Securities of a Piggyback Seller in investment banker(s) and manager(s) to administer the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Companyoffering.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Sun Communities Inc)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) in an Underwritten Offering (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Applicable Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) ), and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b6.1(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Applicable Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, If the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (iw) the Company, (iix) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to such registration or so-called “piggyback” or other incidental or participation registration rights) such registration , in each case, existing as of the date hereof (such Persons being “Other Demanding Sellers”), (iiiy) the Piggyback Sellers Sellers, and (ivz) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would materially and adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, shares of Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Common Stock proposed to be sold by such Other Demanding Sellers, (C) third, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company Company, and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 6.1 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 6.1 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant .
(e) Any Applicable Shareholders having notified the Company to Section 4.1include any or all of its Registrable Securities in a Piggyback Registration shall have the right to withdraw any such notice with respect to any or all of the Registrable Securities designated by it for registration by giving written notice to such effect to the Company prior to the effective date of such registration statement. In the event of any such withdrawal, the Demand Shareholders may continue Company shall not include such Registrable Securities in the registration as a Demand Registration pursuant applicable registration. No such withdrawal shall affect the obligations of the Company with respect to the terms of Section 4.1Registrable Securities not so withdrawn.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever Participation Each time the Company proposes decides to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) file a registration statement under the Securities Act (other than an Initial Public Offering that is not a registration Qualified Public Offering (unless the proposed aggregate gross offering price of the securities to be sold by the Company (i) selling stockholders participating in such Initial Public Offering is greater than $1,000,000), a Qualified Public Offering, registrations on Form Forms S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iiidividend or interest reinvestment plans on Forms S-1 or S-3 or any successor form thereto, and a Demand Registration) on a Shelf Registration Statement covering the offer and sale by the Company or (iv) pursuant to Section 4.1) any of its stockholders of any of its equity securities for cash (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (to all Holders of outstanding Registrable Securities promptly, but not less than in any event at least ten (10) Business Days prior to before the anticipated filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then knowndate. Subject to Section 4.2(b2.2(b), the Company shall include in each such Piggyback Registration all Statement such shares of Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to for which the Company it has received written requests to register such shares within fifteen (which 15) days after such written requests notice has been given. If the Registration Statement is to cover an underwritten offering, such Registrable Securities shall specify be included in the underwriting on the same terms and conditions as the securities otherwise being sold through the underwriters. The Holders of Registrable Securities will be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration at any time prior to the effective date of such Piggyback Registration.
(b) Underwriter’s Cutback If in the good faith judgment of the managing underwriter of such offering the inclusion of all of the shares of Registrable Securities and any other Common Stock requested to be registered would interfere with the successful marketing of such offering, then the number of shares of Registrable Securities and other Common Stock to be included in the offering shall be reduced to such smaller number with the participation in such offering to be in the following order of priority: (i) first, the shares of Common Stock which the Company proposes to sell for its own account, if any, (ii) second, the shares of Class D Registrable Stock and Acquisition Securities requested to be included in such registration, if any, each as required under the Class D Investor Rights Agreement, (iii) third, the shares of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellersregistration, pro rata on among the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata respective Holders thereof on the basis of the number of shares of Registrable Securities that each such Holder of Registrable Securities has requested the Company Common Stock proposed to be sold by include in such Other Demanding Sellers registration, and (Div) fourth, any other shares of Company Common Stock proposed requested to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellersincluded.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) in an Underwritten Offering that is not an Excluded Offering (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Applicable Shareholders of Registrable Securities prompt written notice thereof (but not less than ten (10) five Business Days prior to the filing by the Company with the Commission of any registration statement (or, in the case of an automatic shelf registration statement, a prospectus supplement) with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement statement, or such prospectus supplement, with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) ), and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable)Stock, in each case to the extent then known. Subject to Section 4.2(b6.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Applicable Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days five Business Days after such Piggyback Notice is received by such Piggyback Seller.
(b) If. For purposes of this Agreement, in connection with a Piggyback Registration that involves an Underwritten “Excluded Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by ” means (i) an offering by the CompanyCompany or another holder on an underwritten basis (whether firm commitment or otherwise) or by a single purchaser that is a financial institution that in the ordinary course engages as an underwriter, agent or dealer, in either event without substantial marketing efforts prior to pricing (which shall include without limitation any such offering without a roadshow and provided that any marketing period shall be less than thirty six (36) hours), and (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called any “piggybackat the market” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an similar registered offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company through a broker, sales agent or distribution agent, whether as agent or principal to the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on extent that the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates files a registration statement or prospectus supplement with respect to an offering other than for “at the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellersmarket” facility.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereofexpiration of the Restricted Period, subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement pursuant to Section 4.3 or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders reasonably prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto)) to all holders of Registrable Securities. Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed that the Company proposes to be registeredregister, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable)Stock, in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders holders of Registrable Securities (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein from any holder of Registrable Securities within ten (10) days after such Piggyback Notice is received given by such Piggyback Sellerthe Company.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) advises the Company that, in its opinion, the inclusion of all the securities shares of Company Common Stock sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities shares of Company Common Stock as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows follows, and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, acting in its reasonable judgmentgood faith, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, with any required reductions to such amounts requested to be included made in the following manner: (x) first, to the extent that the Piggyback Sellers are each selling a different percentage of the total Registrable Securities owned by each such Piggyback Seller, by reducing the number of Registrable Securities requested to be included by a Piggyback Seller that is selling a greater percentage of its total Registrable Securities than is requested to be included by the other Piggyback Sellers until each such Piggyback Seller is selling in such Piggyback Registration the same percentage of the total number of Registrable Securities owned by it after giving effect to such reductions; and (y) if additional reductions are required to be made, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, with any required reductions to such amounts requested to be included made in the following manner: (x) first, to the extent that the Piggyback Sellers are each selling a different percentage of the total Registrable Securities owned by each such Piggyback Seller, by reducing the number of Registrable Securities requested to be included by a Piggyback Seller that is selling a greater percentage of its total Registrable Securities than is requested to be included by the other Piggyback Sellers until each such Piggyback Seller is selling in such Piggyback Registration the same percentage of the total number of Registrable Securities owned by it after giving effect to such reductions and (y) if additional reductions are required to be made, pro rata on the basis of the number of Registrable Securities shares of Company Common Stock proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless (i) such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the CompanyCompany in its sole discretion, and (ii) completes and executes all questionnaires, powers of attorney, custody agreements, indemnities, underwriting agreements, lock-up letters and any other documents reasonably required under the terms of such arrangements within the timeframes set forth in Section 4.8(a) hereof.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable)Stock, the Company may, at its election, give written notice of such determination to the any Piggyback Sellers Seller within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the that Demand Shareholders Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereofexpiration of the Restricted Period, subject to the terms and conditions hereof, (1) whenever the Company proposes to register any Company Ampco Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement pursuant to Section 5.3 other than a Marketed Underwritten Shelf Offering, or (iv) pursuant to Section 4.15.1) (a “Piggyback Registration”), whether for its own account or for the account of others, or (2) except with respect to Shelf Registrations pursuant to Section 5.3, if any Piggyback Registration that includes Registrable Securities is a Marketed Underwritten Shelf Offering pursuant to a Shelf Registration Statement (a “Piggyback Shelf Registration Statement”), whenever the Company proposes any such offering under such Piggyback Shelf Registration Statement (a “Piggyback Shelf Takedown”), the Company shall give all Demand Shareholders holders of Registrable Securities prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement or applicable prospectus supplement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Ampco Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement or applicable prospectus supplement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Ampco Common Stock (or other securities, as applicable)Stock, in each case to the extent then known. Subject to Section 4.2(b5.2(b), the Company shall include in each such Piggyback Registration or Piggyback Shelf Takedown all Registrable Securities held by Demand Shareholders holders of Registrable Securities (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration or Piggyback Shelf Takedown that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) advises the Company that, in its opinion, the inclusion of all the securities shares of Ampco Common Stock sought to be included in such Piggyback Registration or Piggyback Shelf Takedown by (i) the Company, (ii) other Persons who have sought to have shares of Company Ampco Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration or any other Investor with respect to its Registrable Securities (such Persons Persons, collectively, being “Other Demanding Sellers”), (iii) the Piggyback Sellers Sellers, and (iv) any other proposed sellers of shares of Company Ampco Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration or prospectus supplement applicable to such Piggyback Shelf Takedown only such securities shares of Ampco Common Stock as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration or Piggyback Shelf Takedown relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Ampco Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers and shares of Ampco Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers and the number of shares of Ampco Common Stock proposed to be sold by such Other Demanding Sellers, and (C) third, shares of Company Ampco Common Stock sought to be registered by Other Demanding Proposed Sellers, pro rata on the basis of the number of shares of Company Ampco Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration or Piggyback Shelf Takedown relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Ampco Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities shares of Ampco Common Stock proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Ampco Common Stock to be sold by the Company Company, and (D) fourth, other shares of Company Ampco Common Stock sought to be registered by Other Proposed Sellers, pro rata on the basis of the number of shares of Ampco Common Stock proposed to be sold by any such Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 5.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register or offer any shares of Company Ampco Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective5.2, the Company shall determine for any reason not to register or offer such shares of Company Ampco Common Stock (or other securities, as applicable)Stock, the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register or offer any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration or Piggyback Shelf Takedown ; provided, that, if permitted pursuant to Section 4.1, the that Demand Shareholders may continue the registration as a Demand Registration pursuant subject to the terms of Section 4.15.1.
Appears in 1 contract
Samples: Shareholder Support Agreement (Ampco Pittsburgh Corp)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement pursuant to Section 6.3, or (iv) pursuant to Section 4.16.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) ), and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b6.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (iw) the Company, (iix) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iiiy) the Piggyback Sellers Sellers, and (ivz) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would materially and adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers Sellers, and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company Company, and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 6.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 6.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.16.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.16.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever Whenever the Company proposes to register any Company Common Stock (or any other of its securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a pursuant to the demand by holders of securities of the Company pursuant to the right to make such demand for the registration by of the securities of the Company) and the registration form to be used may be used for the registration of the Common Stock of the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “"Piggyback Registration”"), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by holders of the Company with the Commission Shares of any its intention to effect such a registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securitiesand, as applicable) proposed subject to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if anySections 9(c) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities9(d) below, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) of the Shares with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) 20 days after such Piggyback Notice is received by such Piggyback Sellerreceipt of the Company's notice.
(b) If, The Registration Expenses (as hereafter defined) of the holders of the Shares shall be paid by the Company in connection with all Piggyback Registrations.
(c) if a Piggyback Registration that involves is an Underwritten Offeringunderwritten registration on behalf 6f the Company, and the lead managing underwriter(s) advise(s) underwriters advise the Company that, in its opinion, the inclusion writing that in their opinion all or a number of all the securities sought requested to be included in such Piggyback Registration by (i) registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in such registration (i) first, the securities the Company proposes to sell, (ii) second, the securities requested to be included in such registration by (A) holders of securities, other than the Shares, pursuant to agreements executed by the Company and such holders prior to the execution of this agreement which provide therein for piggyback registration rights and by present and future holders of securities issued pursuant to the Company's 1989 Employee Stock Option Plan ("1989 Plan") that are Directors or Sponsors, as defined therein, to the extent permitted under Section 4(c) hereof without any dilutive effect and (B) future holders of the Company's Series C Preferred Stock (up to $15,000,000), pursuant to any agreements executed by the Company and such holders which provide therein for piggyback registration rights, (iii) third, on a pari passu basis, the Shares and securities held by employees who are granted options for such securities under the 1989 Plan or who acquire such securities upon exercise of options under said plan where such options are granted after the effective date hereof to the extent permitted under Section 4(c) hereof without dilutive effect, and (iv) fourth, other securities requested and permitted to be included in such registration.
(d) Notwithstanding anything contained in this Warrant to the contrary, if any holder of the Shares does not elect to include any Shares in a Piggyback Registration, such holder of the Shares shall not be entitled to include any of the Shares in any registration hereunder for six months after the effective date of such Piggyback Registration.
(e) Each holder of the Shares agrees not to effect any public sale or distribution (including sales pursuant to Rule 144 under the Securities Act) of equity securities of the Company, or any securities convertible into or exchangeable or exercisable for such securities, during (i) the seven days prior to and (i) the 90-day period beginning on the effective date of any underwritten Piggyback Registration in which any of the Shares are included (except as part of such underwritten registration) and (ii) the seven days prior to and the 120-day period beginning on the effective date of the first firm underwritten public offering of Common Stock of the Company under the Securities Act (except as part of such underwritten registration), unless the underwriters managing the registered public offering otherwise agree.
(f) The Company agrees to indemnify, to the extent permitted by law, each holder of the Shares, its partners, officers and directors and each Person (as hereafter defined) who controls such holder (within the meaning of the Securities Act), with respect to any registration which pursuant to this Agreement includes any of the Shares, against all losses, claims, damages, liabilities and expenses caused by any untrue or alleged untrue statement of material fact contained in any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement there to or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by or on behalf of such holder expressly for use therein or by such holder's failure to deliver a copy of the registration statement applicable or prospectus or any amendments or supplements thereto after the Company has furnished such holder with a sufficient number of copies of the same. In connection with an underwritten offering, the Company shall indemnity such underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the holders of the Shares.
(g) In connection with any registration statement in which any of the Shares are pursuant to this Warrant included, each holder of such Piggyback Registration only Shares shall furnish to the Company in writing such securities information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the extent permitted by law, shall indemnify the Company, its directors and officers and each Person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses resulting from any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so advised furnished in writing by such lead managing underwriter(sholder; provided that the obligation to indemnity shall be individual to each such holder.
(h) can Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person's right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in such indemnified patty's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be sold subject to any liability for any settlement made by the indemnified party without its consent (but such an effectconsent shall not be unreasonably withheld). An indemnifying party who is not entitled to, as follows or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the following order reasonably judgment of priority:any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim.
(i) if the Piggyback Registration indemnification provided for in this Section 9 is unavailable or insufficient to hold harmless an indemnified party, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in this Section 9 in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, demands or liabilities as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or parties on the one hand or the indemnified party on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an offering for indemnified party as a result of the Company’s own accountlosses, then (Aclaims, damages or liabilities referred to in the first sentence of this Section 9(i) first, such number of shares of Company Common Stock (shall be deemed to include any legal or other expenses reasonably Incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this Section 9(i). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(j) The indemnification provided for under this Warrant shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the transfer of securities, as applicable.
(k) No holder of the Shares may participate in any registration pursuant to be sold by the Company as the Company, in its reasonable judgment, shall have determined, this Agreement which is underwritten unless such holder (Bi) second, Registrable Securities of Piggyback Sellers, pro rata agrees to sell such holder's securities on the basis of provided in any underwriting arrangements approved by the number of Registrable Securities proposed holder or holders entitled hereunder to be sold by approve such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers arrangements and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the Piggyback Registration relates terms of such underwriting arrangements; provided that no holder of the Shares included in any underwritten registration shall be required to an offering make any representations or warranties to the Company or the underwriters other than for representations and warranties regarding such holder and such holder's intended method of distribution.
(l) For the purposes of this Section 9 "Registration Expenses" means all expenses incident to the Company’s own account's performance of or compliance with Section 9 of this Warrant, then (A) firstincluding without limitation all registration and filing fees, such number fees and expenses of shares compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, fees and disbursements of Company Common Stock (or other securitiescustodians, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number and fees and disbursements of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by counsel for the Company and all independent certified public accountants, underwriters (Dbut excluding discounts and commissions) fourth, and other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected Persons retained by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
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Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, from and after the date that is one hundred eighty (180) days after the date of this Agreement, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement pursuant to Section 6.3, or (iv) pursuant to Section 4.16.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b6.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) business days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (iw) the Company, (iix) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iiiy) the Piggyback Sellers and (ivz) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would materially and adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 6.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 6.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.16.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.16.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereofIf, subject at any time prior to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are Effective Date of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) filed pursuant to Section 4.11.1(a) of this Agreement, the Company shall determine to register for sale with the SEC any of its Common Stock or securities convertible into, or exchangeable or exercisable for, shares of its Common Stock other than for resale by the Investor (a “"Piggyback Registration”"), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt the Investor written notice thereof (but not less than ten (10a "Notice of Piggyback Registration") Business Days 30 calendar days prior to the filing by the Company with the Commission of any a registration statement with respect thereto). Such relating to such Piggyback Registration, which notice shall include a description of (a “Piggyback Notice”i) shall specify the intended method of distribution of such Common Stock and such other securities, (ii) the number of shares of Company Common Stock (or and such other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by securities the Company intends to register, and (iii) such other Persons who will or have a right to participate in the Piggyback Registration. Upon the written request of the proposed minimum offering price Investor made within 20 days after receipt of such shares a Notice of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests request shall specify the number of Registrable Securities requested intended to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) Investor and the Company that, in its opinion, the inclusion intended method of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”distribution thereof), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable relating to such Piggyback Registration only such securities as all Registrable Securities that the Company is has been so advised requested to register by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if Investor. If the Piggyback Registration relates to for which the Company gives a Notice of Piggyback Registration is a registered public offering involving an offering for underwriting, and the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold underwriters selected by the Company as advise the Company, Company in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata writing that marketing factors require a limitation on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed or other securities to be sold by such Other Demanding Sellers and (D) fourthunderwritten, other shares of the Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if shall reduce the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securitiessecurities included in such registration (1) first, as applicable) sought by reducing the number of shares of Common Stock or other securities to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered for resale by all Persons other than the Investor and other than Ceramco, Inc., a Delaware corporation ("Ceramco"), allocated among such Other Demanding Sellers, Persons in accordance with the priorities then existing among the Company and such Persons and (B2) second, Registrable Securities of Piggyback Sellers, by reducing on a pro rata on basis the basis 3 4 number of the number shares of Registrable Securities proposed requested to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold included by the Company Investor and (D) fourth, Ceramco. Any other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarityStock, in connection with any Underwritten Offering under this Section 4.2 for the Company’s accountRegistrable Securities, or other securities of the Company so excluded shall be withdrawn from and shall not be required to include the Registrable Securities of a Piggyback Seller included in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the CompanyRegistration.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) in an Underwritten Offering (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders Holders of Registrable Securities (each, a “Holder” and collectively, the “Holders”) prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto); provided that, Piggyback Registrations shall not include (i) any “at the market” offering as defined in Rule 415(a)(4) of the Securities Act, or (ii) any Underwritten Offering priced by 11:59 p.m. Hawaiian Time on the first full Business Day following the day of the announcement of such offering. Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) (if any) ), and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b6.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders Holders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in In connection with a Piggyback Registration that involves an Underwritten Offering, if the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (iw) the Company, (iix) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iiiy) the Piggyback Sellers Sellers, and (ivz) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would materially and adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers Sellers, and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company Company, and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 6.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 6.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant . Any Holder having notified the Company to Section 4.1include any or all of its Registrable Securities in a Piggyback Registration shall have the right to withdraw any such notice with respect to any or all of the Registrable Securities designated by it for registration by giving written notice to such effect to the Company prior to the effective date of such registration statement. In the event of any such withdrawal, the Demand Shareholders may continue Company shall not include such Registrable Securities in the registration as a Demand Registration pursuant applicable registration. No such withdrawal shall affect the obligations of the Company with respect to the terms of Section 4.1Registrable Securities not so withdrawn.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever Whenever the Company proposes to register any Company Common Stock (or any other of its securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a and the registration by form to be used may be used for the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) registration of Executive Stock (a “"Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b"), the Company shall will give prompt written notice to all holders of Executive Stock of its intention to effect such a registration and will include in each such Piggyback Registration registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) Fully Vested Shares with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) 15 days after such Piggyback Notice is received by such Piggyback Sellerthe receipt of the Company's notice.
(b) If, The Registration Expenses of the holders of Executive Stock will be paid by the Company in connection with all Piggyback Registrations.
(c) If a Piggyback Registration that involves is an Underwritten Offeringunderwritten primary registration on behalf of the Company, and the lead managing underwriter(s) advise(s) underwriters advise the Company that, in its opinion, writing that in their opinion the inclusion number of all the securities sought requested to be included in such Piggyback Registration by registration exceeds the number which can be sold in such offering, the Company will include in such registration (i) first, the Companysecurities the Company proposes to sell, (ii) second, other Persons who have sought securities requested to have shares of Company Common Stock registered be included in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”)which are not Executive Stock, and (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”)third, as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback SellersFully Vested Shares, pro rata on the basis of based upon the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered Fully Vested Shares held by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Companyholder thereof.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such If a Piggyback Registration is declared effectivean underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering, the Company will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, other securities requested to be included in such registration which are not Executive Stock, and (iii) third, Fully Vested Shares, pro rata based upon the number of Fully Vested Shares held by each holder thereof.
(e) If any Piggyback Registration is an underwritten offering, the underwriter's commissions and discounts shall determine for any reason be paid out of the proceeds from the sale of such securities, and shall not be paid by the Company with respect to the sale of such securities.
(f) Each holder of Executive Stock agrees not to register effect any public sale and/or distribution of any equity security of the company, or any securities convertible into or exchangeable or exercisable for such shares of Company Common Stock (or other securities, during the seven days prior to and the 90 days after the effectiveness of any underwritten Piggyback Registration, except as applicable), the Company may, at its election, give written notice part of such determination to underwritten registration, unless otherwise authorized by the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.Company. PROVISIONS RELATING TO EMPLOYMENT
Appears in 1 contract
Samples: Senior Management Agreement (American Medserve Corp)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any shares of Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders Stockholders prompt written notice thereof (but not less than ten (10) Business Days 15 calendar days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders Stockholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) 10 days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company in writing that, in its opinion, the inclusion of all of the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarityNotwithstanding anything to the contrary contained in this Agreement, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever If the Company at any time proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 any Shares or any successor form thereto, (ii) on Form S-8 security convertible into or any successor form thereto, (iii) on a Shelf Registration Statement exchangeable or (iv) pursuant to Section 4.1) (a “Piggyback Registration”)exercisable for Shares, whether or not for sale for its own account or and other than pursuant to a Demand Registration, on a form and in a manner which would permit registration of the Registrable Shares held by a Stockholder for sale to the account of otherspublic under the Securities Act, the Company shall give all Demand Shareholders prompt written notice thereof of the proposed registration to each Stockholder not later than thirty (but not less than 30) days prior to the filing thereof. Each Stockholder shall have the right to request that all or any part of its Registrable Shares be included in such registration. Each Stockholder can make such a request by giving written notice to the Company within ten (10) Business Days prior to after the filing giving of such notice by the Company with Company; provided, however, that if the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify is an underwritten registration and the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing managing underwriters of such registration statement with offering determine that the Commission, the proposed means aggregate amount of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by securities of the Company which the Company and all Stockholders propose to include in such Registration Statement exceeds the maximum amount of securities that may be sold without having a material adverse effect on the success of the proposed minimum offering offering, including, without limitation the selling price and other terms of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b)offering, the Company shall will include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to registration, first, the securities which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested proposes to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) Ifsell, in connection with a Piggyback Registration that involves an Underwritten Offeringsecond, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion Registrable Shares of all the securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback SellersStockholders, pro rata among all such Stockholders on the basis of the number relative percentage of Registrable Securities proposed Shares owned by all Stockholders who have requested that securities owned by them be so included (it being further agreed and understood, however, that such underwriters shall have the right to be sold by such Piggyback Sellerseliminate entirely the participation of the Stockholders), (C) and third, shares the comparable securities of Company Common Stock sought to be registered by Other Demanding Sellersany additional holders of the Company’s securities, pro rata among all such holders on the basis of the number relative percentage of shares such securities held by each of Company Common Stock them. Registrable Shares proposed to be registered and sold by such Other Demanding Sellers and (D) fourth, other shares pursuant to an underwritten offering for the account of Company Common Stock proposed to any Stockholder shall be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold prospective underwriters selected or approved by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts on the terms and subject to the conditions of the one or more underwriting as agreed upon agreements negotiated between the Company and the prospective underwriters. Any Stockholder who holds Registrable Shares being registered in any offering shall have the right to receive a copy of the form of underwriting agreement and shall have an opportunity to hold discussions with the lead managing underwriter(s), which shall be selected by underwriter of the Company.
(d) If, terms of such underwriting agreement. The Company may withdraw any Registration Statement at any time after giving written notice before it becomes effective, or postpone or terminate the offering of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior without obligation or liability to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1Stockholder.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereofthat is three (3) months after the Closing Date, subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement pursuant to Section 4.3 or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders holders of Registrable Securities prompt written notice thereof (but not less than ten (10) Business Days days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and and, if any, the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case case, to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders holders of Registrable Securities (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) advises the Company that, in its opinion, the inclusion of all the securities shares of Company Common Stock sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities shares of Company Common Stock as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, adverse effect as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, acting in its reasonable judgmentgood faith, shall have determined, (B) second, Registrable Securities of the Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, Registrable Securities of the Piggyback Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Piggyback Sellers, (B) second, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable)Stock, the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the that Demand Shareholders Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
Appears in 1 contract
Piggyback Registrations. (a) From and If at any time after the date hereofCompany has consummated an initial public offering of its Common Stock, subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) file a Registration Statement under the Securities Act (other than a registration with respect to an offering by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”), whether for its own account or for the account of othersany of its security holders of any class of its common equity securities (other than (i) a Registration Statement on Form S-4 or S-8 (or any substitute form that may be adopted by the SEC or other form of limited purpose) or (ii) a Registration Statement filed in connection with an exchange offer or offering of securities solely to the Company's existing security holders), then the Company shall give all Demand Shareholders prompt written notice thereof of such proposed filing to the Holders of Registrable Securities as soon as practicable (but not less in no event fewer than ten (10) Business Days prior to 15 days before the anticipated filing by date or 10 days if the Company with is subject to filing reports under the Commission of any registration statement with respect theretoExchange Act and able to use Form S-3 under the Securities Act). Such , and such notice (a “Piggyback Notice”) shall specify offer such Holders the opportunity to register such number of shares of Company Common Stock (or other securities, Registrable Securities as applicable) proposed each such Holder may request in writing not later than 5 days prior to be registered, the proposed anticipated filing date of filing the Registration Statement after receipt of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by written notice from the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests request shall specify the number of Registrable Securities requested intended to be disposed of by such Piggyback SellerSelling Holder and the intended method of distribution thereof) for inclusion therein within ten (10a "Piggy-Back Registration"). The Company shall use its best efforts to keep such Piggy-Back Registration continuously effective under the Securities Act 5 until at least the earlier of (A) 90 days after such Piggyback Notice is received by such Piggyback Seller.
the effective date thereof or (b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(sB) the Company that, in its opinion, consummation of the inclusion distribution by the Holders of all of the securities sought Registrable Securities covered thereby. The Company shall use its commercially reasonable efforts to cause the managing underwriter or underwriters, if any, of such proposed offering to permit the Registrable Securities requested to be included in a Piggy-Back Registration to be included on the same terms and conditions as any similar securities of the Company or any other security holder included therein, subject to the restrictions set forth in this Section 3(b), and to permit the sale or other disposition of such Piggyback Registrable Securities in accordance with the intended method of distribution thereof. Any Selling Holder shall have the right to withdraw its request for inclusion of its Registrable Securities in any Registration Statement pursuant to this Section 3(b) by (igiving timely written notice to the Company of its request to withdraw. The Company may withdraw a Piggy-Back Registration at any time prior to the time it becomes effective or the Company may elect to delay the registration; provided, however, that the Company shall give prompt written notice thereof to participating Selling Holders. The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 3(b), and each Holder of Registrable Securities shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to a Registration Statement effected pursuant to this Section 3(b). No registration effected under this Section 3(b) and no failure to effect a registration under this Section 3(b), shall relieve the Company of its obligation to effect a registration pursuant to Section 3(a) hereof, and no failure to effect a registration under this Section 3(b) and to complete the sale of securities registered thereunder in connection therewith shall relieve the Company of any other obligation under this Agreement. In a registration pursuant to Section 3(b) hereof involving an underwritten offering, if the managing underwriter or underwriters of such underwritten offering have informed, in writing, the Company and the Selling Holders requesting inclusion in such offering that in such underwriter's or underwriters' opinion the total number of securities which the Company, (ii) the Selling Holders and any other Persons who have sought desiring to have shares of Company Common Stock registered participate in such Piggyback Registration pursuant registration intend to rights include in such offering is such as to demand adversely affect the success of such offering, including the price at which such securities can be sold, then the Company will be required to include in such registration only the amount of securities which it is so advised should be included in such registration. In such event: (x) in cases only involving the registration for sale of securities for the Company's own account (other than pursuant to so-called “piggyback” or the exercise of piggyback rights herein and in other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”contractual commitments of the Company), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (securities shall be registered in such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and offering in the following order of priority:
: (i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of the securities which the Company Common Stock proposes to register, and (or other securitiesii) second, as applicable) provided that no securities sought to be sold included by the Company as have been excluded from such registration, the Company, in its reasonable judgment, shall have determined, securities of the Holders and other Persons entitled to exercise "piggy-back" registration rights pursuant to contractual commitments of the Company (B) second, Registrable Securities of Piggyback Sellers, pro rata based on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number amount of securities sought to be registered by all such Other Demanding SellersPersons); and (y) in cases not involving the registration for sale of securities for the Company's own account only, securities shall be registered in such offering in the following order of priority: (i) first, the securities of any 6 Person whose exercise of a "demand" registration right pursuant to a contractual commitment of the Company is the basis for the registration (provided that if such Person is a Holder of Registrable Securities, as among Holders of Registrable Securities there shall be no priority and Registrable Securities sought to be included by Holders of Registrable Securities shall be included pro rata based on the amount of securities held by such Persons), (Bii) second, Registrable Securities provided that no securities of Piggyback Sellerssuch Person referred to in the immediately preceding clause (i) have been excluded from such registration, securities of the Holders and other Persons entitled to exercise "piggy-back" registration rights pursuant to contractual commitments (pro rata based on the basis amount of the number of Registrable Securities proposed securities sought to be sold registered by such Piggyback Sellers, Persons) and (Ciii) third, shares provided that no securities of Company Common Stock to be sold by any other Person have been excluded from such registration, the securities which the Company and (D) fourthproposes to register. If, other shares as a result of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under the provisions of this Section 4.2 for the Company’s account3(b), the Company any Selling Holder shall not be required entitled to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any all Registrable Securities in connection with a Piggy-Back Registration that such particular withdrawn or abandoned Piggyback Registration; providedSelling Holder has requested to be included, that, if permitted pursuant such Selling Holder may elect to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant withdraw his request to the terms of Section 4.1include Registrable Securities in such registration.
Appears in 1 contract
Samples: Warrant Registration Rights Agreement (Club Regina Resorts Inc)
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on Form S-4 or any successor form thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement pursuant to Section 6.3, or (iv) pursuant to Section 4.16.1) (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b6.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (iw) the Company, (iix) other Persons who have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iiiy) the Piggyback Sellers and (ivz) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would materially and adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 6.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 6.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.16.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.16.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject Subject to the terms and conditions hereof, whenever the Company proposes to register any Company Common Stock (or any other of its equity securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act (other than a registration by the Company (i) on a registration statement on Form S-4 or any successor form thereto, (ii) a registration statement on Form S-8 or any successor form forms thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “"Piggyback Registration”"), whether for its own account or for the account of others, the Company shall give all Demand the Piggyback Shareholders prompt written notice thereof (but not less than ten (10) Business Days business days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “"Piggyback Notice”") shall specify specify, at a minimum, the number of shares of Company Common Stock (or other securities, as applicable) equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and distribution, the proposed managing underwriter(s) underwriter or underwriters (if anyany and if known) and a good faith estimate by the Company of the proposed minimum offering price of such shares equity securities. Upon the written request of Company Common Stock (or other securities, as applicable), in each case to any Persons that on the extent then known. Subject to Section 4.2(b), date of the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders Notice constitute a Piggyback Shareholder (a “"Piggyback Seller”") with respect to which the Company has received written requests (which written requests request shall specify the number of Registrable Securities requested then presently intended to be disposed of by such Piggyback Seller) for inclusion therein given within ten (10) days after such Piggyback Notice is received by such Piggyback Seller, the Company, subject to the terms and conditions of this Agreement, shall use its reasonable best efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company's equity securities being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration that involves is not an Underwritten Offering, a nationally recognized independent investment bank selected by FIG Advisors, any Shareholder or any Permitted Transferee thereof (to the lead managing underwriter(sextent a Shareholder hereunder); reasonably acceptable to the Company, and whose fees and expenses shall be borne solely by the Company) advise(s) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) other Persons others who have sought to have shares equity securities of the Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “"piggyback” " or other incidental or participation registration rights) such registration (such Persons being “"Other Demanding Sellers”"), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares equity securities of the Company Common Stock (such Persons being “"Other Proposed Sellers”"), as the case may be, would adversely affect the success thereofmarketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such lead managing underwriter(s) underwriter can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s 's own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities to be sold by the Company as the Company, in its reasonable judgmentjudgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock securities sought to be registered by Other Demanding SellersSellers (if any), pro rata on the basis of the number of shares of Company Common Stock proposed to be sold Shares held by such Other Demanding Piggyback Sellers and (DC) fourththird, other shares of Company Common Stock proposed to be sold equity securities held by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s 's own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) equity securities sought to be registered by each Other Demanding Seller Seller, the Piggyback Sellers (if any), pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, Piggyback Sellers and (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold other equity securities held by such Piggyback Sellers, (C) third, shares of Company Common Stock any Other Proposed Sellers or to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold as determined by any Other Proposed Sellersthe Company.
(c) For clarity, in In connection with any Underwritten Offering under this Section 4.2 5.2 for the Company’s 's account, the Company shall not be required to include the a holder's Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller holder accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be underwriters selected by the Company; provided, that any such underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) its equity securities as set forth in this Section 4.2 5.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such shares of Company Common Stock (or other equity securities, as applicable), the Company may, at its election, give written notice of such determination to the each Piggyback Sellers within five (5) Business Days thereof Shareholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback RegistrationRegistration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that, if permitted pursuant to Section 4.1, the Demand that Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.15.1.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereofIf, subject other than pursuant to the terms and conditions hereofSection 5.01, whenever the Company proposes or is required to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) file a registration statement under the Securities Act with respect to an offering of preferred stock of the Company, whether or not for sale for its own account (other than a registration by the Company statement (i) on Form S-4 X-0, Xxxx X-0 or any successor form thereto, forms thereto or (ii) on Form S-8 filed solely in connection with any employee benefit or any successor form theretodividend reinvestment plan), then the Company shall give prompt written notice of such proposed filing at least 30 days before the anticipated filing date (iiithe “Piggyback Notice”) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) the Holders. The Piggyback Notice shall offer the Holders the opportunity to include in such registration statement the number of Registrable Securities as they may request (a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give all Demand Shareholders prompt written notice thereof (but not less than ten (10) Business Days prior to the filing by the Company with the Commission of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b)5.02(b) hereof, the Company shall include in each such Piggyback Registration all Registrable Securities held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Company has received written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein within ten (10) 15 days after such Piggyback Notice is received by such Piggyback Seller.
(b) If, in connection with notice has been given to the Holders. The Holders shall be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration that involves an Underwritten Offering, at any time at least two business days prior to the lead managing underwriter(s) advise(s) effective date of the registration statement relating to such Piggyback Registration. The Company that, shall be required to maintain the effectiveness of the registration statement for a Piggyback Registration for a period of 180 days after the effective date thereof or such shorter period in its opinion, the inclusion of which all the securities sought to be Registrable Securities included in such Piggyback Registration by (i) the Company, (ii) other Persons who Statement have sought to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold by the Company and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice of its intention to register any shares of Company Common Stock (or other securities, as applicable) as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, actually been sold. If the Company shall determine for any reason not to register such shares proceed with the registration that is the subject of Company Common Stock (or other securities, as applicable)the Piggyback Notice, the Company may, at its election, shall give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof Holders and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with the Piggyback Registration relating to such particular withdrawn registration, but shall not be relieved of its obligation hereunder for registration expenses with respect to such registration.
(b) If any of the securities to be registered pursuant to the registration giving rise to the Holders’ rights under this Section 5.03 are to be sold in an underwritten offering, the Holders shall be permitted to include all Registrable Securities requested to be included in such registration in such offering on the same terms and conditions as any other shares of stock or abandoned Piggyback Registrationother equity, if any, of the Company included therein; provided, thathowever, that if permitted pursuant such offering involves a firm commitment underwritten offering and the managing underwriter(s) of such underwritten offering advise the Company in writing that it is their good faith opinion that the total amount of Registrable Securities requested to Section 4.1be so included, together with all other securities that the Demand Shareholders may continue Company and any other Persons having rights to participate in such registration intend to include in such offering (such other securities being referred to herein as “Other Piggyback Securities”), exceeds the registration total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all Other Piggyback Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Piggyback Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Piggyback Securities shall be allocated for inclusion as a Demand Registration pursuant follows:
(i) first, all Other Piggyback Securities being sold by the Company;
(ii) second, all Registrable Securities requested to be included by any Holders, pro rata (if applicable), based on the terms number of Section 4.1shares of Registrable Securities Beneficially Owned by each such Holder; and
(iii) third, among any other holders of Other_Piggyback_Securities requesting such registration, pro rata, based on the number of Other_Piggyback_Securities Beneficially Owned by each such holder of Other Piggyback Securities.
Appears in 1 contract
Piggyback Registrations. (a) From and after the date hereof, subject to the terms and conditions hereof, whenever If the Company at any time proposes to register any Company Common Stock (or any other securities that are of the same class or series as any Registrable Securities that are not shares of Company Common Stock) under the Securities Act file a registration statement (other than a registration by the Company (i) on Form S-4 S-4, Form S-8 or Form S-3 (xxxxxx xxxx xespect to dividend reinvestment plans and similar plans) or any successor form forms thereto, (ii) on Form S-8 or any successor form thereto, (iii) on a Shelf Registration Statement or (iv) pursuant to Section 4.1) (a “Piggyback Registration”)"Company Registration Statement") with respect to securities, whether for its own account or for the account of others, other holders of the Company shall give all Demand Shareholders prompt written notice thereof Company's securities (but not less than ten (10"Other Holders") Business Days prior to the filing by the Company with the Commission of any that have requested such registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Company Common Stock (or other securities, as applicable) proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter(s) (if any) and a good faith estimate by the Company of the proposed minimum offering price of such shares of Company Common Stock (or other securities, as applicable), in each case to the extent then known. Subject to Section 4.2(b"Requesting Holder"), the Company shall include shall, in each case, give written notice of such Piggyback proposed filing to the Investor at least twenty (20) days before the anticipated filing date of the Company Registration Statement, and such notice shall offer to the Investor the opportunity to have any or all of the Registrable Securities Shares held by Demand Shareholders (a “Piggyback Seller”) with respect to which the Investor included in the Company has received written requests (which written requests Registration Statement. If the Investor desires to have its Registrable Shares registered under this Section 5.3, it shall specify so advise the number of Registrable Securities requested to be disposed of by such Piggyback Seller) for inclusion therein Company in writing within ten (10) days after the date of receipt of such Piggyback Notice notice (which request shall set forth the amount of Registrable Shares for which registration is received by requested), and the Company shall use its commercially reasonable efforts to include in the Company Registration Statement all such Piggyback Seller.
(b) IfRegistrable Shares so requested to be included therein. Notwithstanding the foregoing, in connection with a Piggyback Registration if such proposed offering is an underwritten offering and the managing underwriter or underwriters of the offering advises the Company that involves an Underwritten Offeringthe total amount of Registrable Shares which the Investor, the lead managing underwriter(s) advise(s) the Company that, in its opinion, the inclusion of all the securities sought and any Other Holders intended to be included in such Piggyback Registration by (i) the Company, (ii) other Persons who have sought proposed public offering is sufficiently large to have shares of Company Common Stock registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of shares of Company Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the success thereofof such proposed public offering, then the Company amount of securities to be offered for the account of the Investor and the Other Holders shall include be reduced pro rata, based upon the aggregate number of securities to be offered for the accounts of the Investor and all Other Holders (except the Company) intended to be included in such offering, to the registration statement applicable extent necessary to reduce the total amount of securities to be included in such Piggyback Registration only such securities as proposed public offering to the Company is so advised amount recommended by such lead managing underwriter(s) can be sold without such an effect, as follows and in underwriter or underwriters before the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) to be sold securities offered by the Company as are so reduced. Anything to the Companycontrary in this Agreement notwithstanding, the Company may withdraw or postpone any Company Registration Statement referred to in its reasonable judgmentthis Section 5.3 at any time before it becomes effective or withdraw, postpone or terminate the offering after it becomes effective without any liability or obligation to the Investor. The obligations of the Company under this Section 5.3 shall have determined, terminate with respect to the Investor: (B1) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of shares of Company Common Stock proposed to be sold by such Other Demanding Sellers and (D) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers; or
(ii) if the Piggyback date that a Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares of Company Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares of Company Common Stock to be sold Statement filed by the Company and in accordance with Section 5.1 is declared effective or (D2) fourth, other shares of Company Common Stock proposed to be sold by any Other Proposed Sellers.
(c) For clarity, in connection with any Underwritten Offering under this Section 4.2 for on the Company’s account, date on which the Company shall not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller accepts the terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company.
(d) If, at any time after giving written notice Investor can sell all of its intention remaining Registrable Shares in any three (3) month period pursuant to register any shares of Company Common Stock (or other securities, Rule 144 as applicable) as set forth in this Section 4.2 and prior to promulgated under the time Securities Act without the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine need for any reason not to register such shares of Company Common Stock (registration or other securities, as applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration; provided, that, if permitted pursuant to Section 4.1, the Demand Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1qualification.
Appears in 1 contract
Samples: Securities Purchase Agreement (Amtrust International Insurance LTD)
