Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise the Company in writing that, in its view, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend to include in such registration exceeds the Maximum Offering Size: (i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size: (A) first, securities of the Company to be sold for the account of the Company; (B) second, (x) the Registrable Securities requested to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities and (y) the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and (C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or (ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size: (A) first, the securities requested to be registered by such Demand Investor; (B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities; (C) third, securities of the Company to be sold for the account of the Company; and (D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine.
Appears in 2 contracts
Samples: Registration Rights Agreement (Interliant Inc), Securities Purchase Agreement (Interliant Inc)
Priority in Incidental Registrations. If the managing underwriter of in connection with a registration registered, underwritten offering pursuant to this Section 3 shall advise 1.1 advises the Company in writing that, in its viewopinion, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors Company and any other persons intend entitled to include securities in such registration (or, in the case of an effective Shelf Registration Statement, the applicable registered, underwritten offering) propose to include therein exceeds the Maximum Offering Size:
(i) If largest number of securities which can be sold without having an adverse effect on such registration was initiated by offering, including the Companyprice at which such securities can be sold, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registrationregistration (or, in the priority listed belowcase of an effective Shelf Registration Statement, securities the applicable registered, underwritten offering) up to the Maximum Offering Size:
such maximum number of securities (Ai) first, all the securities of the Company initially proposes to be sold sell for the account of (A) Artal, pursuant to the Company;
's contractual requirement to do so contained in Annex A of the New Stockholders' Agreement, and (B) Bermore, pursuant to the Company's contractual requirement to do so contained herein to register securities owned by Bermore, and (ii) second, to the extent that the number of securities referred to in clause (xi) is less than the Registrable Securities requested number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, all securities owned by any other holder of securities electing and entitled to register (or, in the case of a registered, underwritten offering under an effective Shelf Registration Statement, sell) such securities pursuant to any similar registration rights agreement; provided that if the number of securities to be included in such registration (or, in the case of an effective Shelf Registration Statement, the applicable registered, underwritten offering) by Artal and Bermore pursuant to clause (i) of this Section 3 hereof by any Charter Investor or Softbank Investor holding exceeds the number which the Company has been advised can be sold in such Registrable Securities and (y) offering without having the adverse effect referred to above, the number of securities requested to be included in such registration by any holder each of Parity Piggyback Registration Securities Artal and by any Demand Investor, Bermore shall be limited to such extent and shall be allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities Artal and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities Bermore on the basis of the relative number of securities requested (and, in the case of Bermore, entitled) to be included in such registration (or, in the Company held case of an effective Shelf Registration Statement, the applicable registered, underwritten offering) by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineArtal and Bermore.
Appears in 2 contracts
Samples: Stock Purchase and Stockholder's Agreement (Keebler Foods Co), Stock Purchase and Stockholder's Agreement (Flowers Industries Inc /Ga)
Priority in Incidental Registrations. If the managing underwriter of (i) a registration pursuant to this Section 3 shall advise 2.2 involves an underwritten offering of the Company in writing thatsecurities so being registered, in its view, whether or not for sale for the number or mix account of securities (including all Registrable Securities) which the Company, to be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the Charter InvestorsRegistrable Securities so requested to be registered for sale for the account of Holders of Registrable Securities are also to be included in such underwritten offering, and (ii) the Softbank Investors managing underwriter of such underwritten offering shall inform the Company and any other persons intend the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to include be included in such registration exceeds the Maximum Offering Size:
number which can be sold in (ior during the time of) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor")offering, then the Company will may include in such registration, in the priority listed below, offering all securities up to the Maximum Offering Size:
(A) first, securities of proposed by the Company to be sold for its own account and may decrease the account number of Registrable Securities and other securities of the Company;
Company that persons have requested to be included in such registration by (Ba) secondfirst decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, to the extent necessary, decreasing the Registrable Securities requested to be registered (xpro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to the filing of the registration statement with respect to such registration); provided, however, that the rights of Holders hereunder shall be subject to (i) the right of the Series A Persons requesting inclusion of securities in such registration to include all of the securities requested to be registered by such Series A Persons in such registration without reduction prior to the inclusion of any Registrable Securities requested to be included in such registration pursuant to this Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities 2.2., and (yii) the rights of Series B Persons, Series C Persons, Series D Persons, Series E Persons, and Warrant Purchasers requesting registration to include securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) on a pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included of Holders hereunder in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to same manner as described in Section 3 2.1(c) hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine.
Appears in 2 contracts
Samples: Registration Rights Agreement (Bionumerik Pharmaceuticals Inc), Registration Rights Agreement (Bionumerik Pharmaceuticals Inc)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise 5.3(a) hereof involves an underwritten offering and the Company managing underwriter advises IBC in writing writing, that, in its viewopinion, the number or mix of IBC Securities intended to be included in such Registration Statement exceeds the largest number of IBC Securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold or, if in a non-underwritten offering, IBC determines, in its reasonable discretion, to limit the number of securities to be sold, (including all Registrable Securities) which the Companyin either case, the Charter Investors, the Softbank Investors and any other persons intend to include in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand InvestorMarketable Number"), then the Company IBC will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
Registration Statement (Ai) first, securities all of the Company IBC Securities IBC or the Person referred to be sold in the first sentence of Section 5.3(a)(i) proposes to sell for the account of the Company;
its own account, (Bii) second, (x) all of the Registrable IBC Securities requested to be included by holders of IBC Securities pursuant to Section 3 of the First Registration Rights Agreement, (iii) third, the IBC Securities requested to be included by Xxxxxxx pursuant to Section 5.3(a) hereof and (iv) fourth, the securities requested to be included by other Persons (but if the number of securities to be registered pursuant to clause (iv) together with the number of securities to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities clauses (i), (ii) and (yiii) of this Section 5.3(b) exceeds the Marketable Number, the number of securities requested of Persons to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, registered pursuant to clause (iv) shall be allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors Persons on the basis of the relative number of (I) Registrable IBC Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with each such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities Person has requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineregistration).
Appears in 2 contracts
Samples: Shareholder Agreement (Interstate Bakeries Corp/De/), Shareholder Agreement (Interstate Bakeries Corp/De/)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 2(b) involves an underwritten offering (other than in the case of a registration under Section 2(a)), and the managing underwriter shall advise the Company in writing writing, that, in its viewopinion, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors requested and any other persons intend otherwise proposed to include be included in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed belowfollowing priority, securities up to the Maximum Offering Size:
, (A1) first, the securities of the Company proposed to be sold issued by the Company, (2) second, all Common Shares proposed to be registered for the account of the Company;
Stockholders and requested to be included in such registration, pro rata in accordance with the number of Common Shares proposed to be registered by such Stockholders and (B3) secondthird, (x) all Common Shares proposed to be registered for the Registrable Securities account of other Persons, if any, having registration rights granted after the date hereof and requested to be included in such registration (whether or not such request arises from a demand registration right granted to such person), pro rata in accordance with the number of Common Shares proposed to be registered by such other Persons, or otherwise allocated among such Persons in such proportion as such Persons and the Company shall agree. Notwithstanding the foregoing, after the 18 month anniversary of the Closing Date, the Persons referred to in clauses (2) and (3) shall include Common Shares in any registration pursuant to this Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities and (y2(b) pro rata in accordance with the securities number of Common Shares requested to be included in such registration by all such Persons; provided that if, after such 18 month anniversary, a request pursuant to this Section 2(b) occurs in respect of an underwritten offering made at the request of any holder other Person pursuant to registration rights granted to such Person after the date hereof in connection with the issuance by the Company of Parity Piggyback Registration Securities securities, and by any Demand Investorthe managing underwriter has advised the Company in writing, allocated (if necessary) pro rata among such Charter Investorsthat, Softbank Investorsin its opinion, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors securities requested and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company otherwise proposed to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If included in such registration was initiated by a Demand Investorexceeds the Maximum Offering Size, then the Company will include in such registration, in the priority listed belowfollowing priority, securities up to the Maximum Offering Size:
, (A1) first, the securities requested proposed to be registered by such Demand Investor;
Person and (B2) second, all Common Shares proposed to be registered for the Registrable Securities account of other Persons (including the Stockholders), if any, requested to be included in such registration pro rata in accordance with the numbers of other securities proposed to be registered by the Charter Investors, the Softbank Investors other Persons or otherwise allocated among such other Persons in such proportion as such holders and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineagree.
Appears in 1 contract
Priority in Incidental Registrations. If the managing underwriter of (i) Subject to paragraph (ii) below, if a registration pursuant to this Section 3 shall advise involves an underwritten offering and the managing underwriter advises the Company in writing that, in its viewopinion, the number or mix of equity securities (including all Registrable SecuritiesSecurities requested to be included in such offering by the Selling Holders) which that the Company, Company and the Charter Investors, the Softbank Investors and any other persons Selling Holders intend to include in such registration exceeds the Maximum Offering Size:
(i) If , the number of such securities to be included in such registration was initiated by the Companyshall be reduced to such extent, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities registration up to the Maximum Offering SizeSize as follows:
(A) first, all the equity securities of the Company proposes to be sold sell for the its own account of the Company;in such registration; and
(B) second, (x) to the Registrable Securities requested to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities and (y) extent that the number of equity securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the its own account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to is less than the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the aggregate number of Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereofSelling Holders, allocated (if necessary) pro rata among the Selling Holders on the basis of the number of Registrable Securities then owned by each of the Selling Holders.
(ii) Subject to the provisions of Section 9(o) below, if any holder(s) of Ordinary Shares, Ordinary Share Equivalents or other equity securities of the Company ("Other Registrable Securities") other than a Holder (each, a "Non-Party Requesting Holder") makes a requested or demand registration, such requested or demand registration involves an underwritten offering and the managing underwriter advises the Company that, in its opinion, the number of securities requested to be included in such registration (including all Registrable Securities requested to be included in such registration by the Holders and all Other Registrable Securities requested to be included in such registration by Non-Party Requesting Holders) exceeds the Maximum Offering Size, the number of such Charter Investorssecurities to be included in such registration shall be reduced to such extent, Softbank Investors and holders the Company shall include in such registration such number of Parity Piggyback Registration securities up to the Maximum Offering Size, as follows: (A) first, the number of Registrable Securities requested to be included in such registration by the Holders shall be limited to such extent, and shall be allocated pro rata among them on the basis of the relative number of securities Registrable Securities then owned by such Holders, provided that any such amount thereby allocated to any such Holder that exceeds such Holder's request shall be reallocated to the other remaining Holders, and (B) second, to the extent that the number of Registrable Securities which the Holders have requested to be included in such registration is less than the Maximum Offering Size, the number of Other Registrable Securities requested to be included in such registration by the Non-Party Requesting Holder and all other holders thereof (collectively, "Non-Party Holders"), provided that the number of Registrable Securities that may be registered by Non-Party Holders shall be limited to such extent, and, subject to any rights of Non-Party Holders, shall be allocated pro rata among all Non-Party Holders on the basis of the Company held relative number of Other Registrable Securities then owned by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineNon-Party Holders.
Appears in 1 contract
Samples: Registration Rights Agreement (Aspen Insurance Holdings LTD)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise 3.1(b) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its good faith view, the number or mix of equity securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors Stockholders and any other persons Persons intend to include in such registration exceeds the Maximum Offering Size:
(i) If largest number of securities which can be sold without having a material adverse effect on such registration was initiated by offering, including the Companyprice at which such Registrable Securities can be sold, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
registration (A) first, securities of all the Company Priority Securities to be sold for the account of the Company;
's own account; (B) second, (x) to the extent that the number of Priority Securities is less than the number of Registrable Securities requested to which the underwriter has advised the Company can be included sold in such registration pursuant offering without having the material adverse effect referred to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities and (y) the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investorabove, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the many Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities Stockholders pursuant to Section 3 3.1(b)(i) hereof, provided that if the number of Registrable Securities requested to be included in such registration by the Stockholders pursuant to Section 3.1(b)(i) hereof, together with the number of Priority Securities, exceeds the number which the Company has been advised can be sold in such offering without having the material adverse effect referred to above, the number of such Registrable Securities requested to be included in such registration by the Stockholders pursuant to Section 3.1(b)(i) hereof shall be allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities requesting Stockholders on the basis of the relative number of securities of the Company held Registrable Securities owned by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
them; and (C) third, securities to the extent that the number of Priority Securities and Registrable Securities, as contemplated by (A) and (B) above, is less than the number of Registrable Securities which the underwriter has advised the Company can be sold in such offering without having the material adverse effect referred to above, the number of equity securities requested to be sold for included in such registration by Persons other than the account of the Company; and
Stockholders shall be allocated among such other Persons on a basis as determined (Dor to be determined) fourth, securities of by the Company to be sold for the account of and such other persons, with such priorities among them as the Company shall determinePersons.
Appears in 1 contract
Priority in Incidental Registrations. If the managing underwriter of for a registration pursuant to this Section 3 5.02 that involves an underwritten offering shall advise the Company in writing that, in its viewopinion, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend to include inclusion in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities of the Company to be sold for the account of the Company;
(B) second, (x) the Registrable Securities requested to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities and (y) the securities requested proposed to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investorthe Company for its own account, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on plus the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities Common Shares requested to be included in such registration by the Charter InvestorsRegistered Stockholder, plus the securities requested to be included by any other securityholders would materially adversely effect the ability of the Company with respect to securities to be disposed of for its own account to dispose of their securities in an orderly manner in such offering within a price range acceptable to the Company, the Softbank Investors Company shall include (i) first, all the securities which the Company proposes to register for its own account or which are proposed to be registered pursuant to demand registration rights, (ii) second, all the securities that the Company proposes to register for the account of any other stockholder who exercises certain piggy-back registration rights existing as of the date hereof, and (iii) third, to the extent that their inclusion would not have a material adverse effect in the manner described above, the number of Registrable Common Shares and other equity securities and the holders principal amount of Parity Piggyback Registration Securities pursuant debt securities requested to Section 3 hereof, be included by the Registered Stockholder and other securityholders allocated (if necessary) pro rata among all of the Registered Stockholder and such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities other securityholders on the basis of the relative number of Registrable Common Shares and equity securities and the principal amount of such debt securities requested to be included in such registration. Notwithstanding anything contained herein to the contrary, in the event the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, proposes to register its securities of under the Company to be sold 1933 Act for the account of the Company; and
(D) fourth, securities any stockholder who exercises certain demand registration rights existing as of the Company to be sold for the account of other personsdate hereof, with such priorities among them as then the Company shall determineinclude in such registration statement (i) first, all such securities being registered in connection with such demand registration rights existing as of the date hereof, (ii) second, all the securities the Company proposes to register for its own account, if any, and (iii) third, the Registrable Common Shares.
Appears in 1 contract
Samples: Warrant Agreement (Gliatech Inc)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise 5.3(a) hereof involves an underwritten offering and the Company managing underwriter advises IBC in writing writing, that, in its viewopinion, the number or mix of IBC Securities intended to be included in such Registration Statement exceeds the largest number of IBC Securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold or, if in a non-underwritten offering, IBC determines, in its reasonable discretion, to limit the number of securities to be sold, (including all Registrable Securities) which the Companyin either case, the Charter Investors, the Softbank Investors and any other persons intend to include in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand InvestorMarketable Number"), then the Company IBC will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
Registration Statement (Ai) first, securities all of the Company IBC Securities IBC or the Person referred to be sold in the first sentence of Section 5.3(a)(i) proposes to sell for the account of the Company;
its own account, (Bii) second, (x) all of the Registrable IBC Securities requested to be included by holders of IBC Securities pursuant to Section 3 of the First Registration Rights Agreement, (iii) third, the IBC Securities requested to be included by Ralston pursuant to Section 5.3(a) hereof and (iv) fourth, xxx xxxurities requested to be included by other Persons (but if the number of securities to be registered pursuant to clause (iv) together with the number of securities to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities clauses (i), (ii) and (yiii) of this Section 5.3(b) exceeds the Marketable Number, the number of securities requested of Persons to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, registered pursuant to clause (iv) shall be allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors Persons on the basis of the relative number of (I) Registrable IBC Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with each such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities Person has requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineregistration).
Appears in 1 contract
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise 2(a) (other than a Demand Registration, it being understood the priority for such registrations is set forth in Section 3(b)) involves an underwritten offering and the managing underwriter (or underwriters) advises the Company in writing that, in its view(or their) opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 2, exceeds the maximum number of shares of Common Stock specified by the managing underwriter or mix underwriters that may be distributed without adversely affecting the price, timing or distribution of securities (including all Registrable Securities) which such shares of Common Stock, then the Company, the Charter Investors, the Softbank Investors and any other persons intend to Company shall include in such registration exceeds only such maximum number of Registrable Securities which, in the Maximum Offering Size:
reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) If such registration was initiated by first, all of the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then shares of Common Stock that the Company will include in such registrationproposes to sell for its own account, in the priority listed belowif any, securities up to the Maximum Offering Size:
(A) first, securities of the Company to be sold for the account of the Company;
(Bii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (xas hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such registration Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders of Registrable Securities pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding clause (iii) above, such shares shall be allocated pro rata among the holders of Registrable Securities and (y) based on the securities number of shares of Common Stock that such holders of Registrable Securities shall have requested to be included therein; Notwithstanding the foregoing, if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such registration by any holder of Parity Piggyback Incidental Registration Securities and by any Demand Investor, allocated (if necessary) on a basis other than a pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registrationif, in the priority listed belowreasonable opinion of such underwriter or underwriters, securities up selection on such other basis would be material to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis success of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineoffering.
Appears in 1 contract
Samples: Registration Rights Agreement (Polaroid Holding Co)
Priority in Incidental Registrations. If the managing underwriter of (i) a registration pursuant to this Section 3 shall advise 2.2 involves an underwritten offering of the Company in writing thatsecurities so being registered, in its view, whether or not for sale for the number or mix account of securities (including all Registrable Securities) which the Company, to be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the Charter InvestorsRegistrable Securities so requested to be registered for sale for the account of Holders of Registrable Securities are also to be included in such underwritten offering, and (ii) the Softbank Investors managing underwriter of such underwritten offering shall inform the Company and any other persons intend the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to include be included in such registration exceeds the Maximum Offering Size:
number which can be sold in (ior during the time of) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor")offering, then the Company will may include in such registration, in the priority listed below, offering all securities up to the Maximum Offering Size:
(A) first, securities of proposed by the Company to be sold for its own account and may decrease the account number of Registrable Securities and other securities of the Company;
Company that persons have requested to be included in such registration by (Ba) secondfirst decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, to the extent necessary, decreasing the Registrable Securities requested to be registered (xpro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to the filing of the registration statement with respect to such registration); provided, however, that the rights of Holders hereunder shall be subject to (i) the right of the Series A Persons requesting inclusion of securities in such registration to include all of the securities requested to be registered by such Series A Persons in such registration without reduction prior to the inclusion of any Registrable Securities requested to be included in such registration pursuant to this Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities 2.2., and (yii) the rights of Series B Persons, Series C Persons, series D Persons, Series E Persons, Series F Persons, Series G Persons, Series H Persons and Series E Warrant Purchasers requesting registration to include securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) on a pro rata among such Charter Investorsbasis with the Registrable Securities of Holders hereunder in the same manner as described in Section 2.1(c) hereof; provided, Softbank Investorshowever, holders that the rights of Parity Piggyback Registration Securities and Demand Investors on Takeda as a Holder hereunder shall, to the basis extent determined by Takeda to be appropriate for sales by Takeda pursuant to Section 8.4(e) of the relative Alliance Agreement, be a prior right of Takeda to such extent (whether pursuant to "demand" or "piggyback" registration rights) and in preference to the registration rights of other Holders and Series A Persons, Series B Persons, Series D Persons, Series E Persons, Series F Persons, Series G Persons, Series H Persons and Series E Warrant Purchasers to include all of the Registrable Securities requested by Takeda to be registered in such registration in such registration to the extent of 50% of the total number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company shares to be sold registered for the account of other persons, with such priorities among them selling shareholders (and in place of the rights Takeda would otherwise have to participate in registration rights as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested remaining 50% balance of shares to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of selling shareholders, except to the Company; and
(D) fourth, securities of the Company extent other selling shareholders do not request registration as to be sold for the account of other persons, with such priorities among them as the Company shall determineremaining balance).
Appears in 1 contract
Samples: Registration Rights Agreement (BioNumerik Pharmaceuticals, Inc.)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise the Company in writing that, in its view, the number or mix of securities (including all Registrable Securities2(b) which the Company, the Charter Investors, the Softbank Investors and any other persons intend to include in such registration exceeds the Maximum involves an Underwritten Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities of the Company to be sold securities so being registered, whether or not for sale for the account of the Company;
, the Company shall so advise each of the Holders as a part of the Company Notice. In such event, the right of each of the Holders to registration pursuant to this Section 2(b)(ii) 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. The Holder whose Registrable Securities are to be included in such registration shall (Btogether with the Company) enter into an underwriting agreement in customary form with the representative of the Underwriter or Underwriters selected for underwriting by the Company. Notwithstanding any other provision of this Section 2(b), if the sole Underwriter or the lead managing Underwriter, as the case may be, of such Underwritten Offering shall advise the Company that, in its opinion, marketing factors require a limitation on the number of securities to be underwritten, such Underwriter may (subject to the allocation priority set forth below) limit the number of Registrable Securities to be included in the registration and underwriting. The Company shall so advise all holders of Registrable Securities requesting registration, and the number of shares of Registrable Securities that are entitled to be included in the registration and underwriting shall be allocated in the following manner: first, all the securities entitled to be sold pursuant to such Registration Statement without reference to the incidental registration rights of any holder (including Holders); second, (x) all Registrable Securities requested to be included in the Underwritten Offering by Investments LP, to the extent all such Registrable Securities can be included in such Underwritten Offering; third, all Registrable Securities requested to be included in such registration pursuant Underwritten Offering by the Holders (other than Investments LP) and, to Section 3 hereof by any Charter Investor or Softbank Investor holding the extent not all such Registrable Securities and can be included in such Underwritten Offering, the number of Registrable Securities to be included shall be allocated pro rata on the basis of the number of Registrable Securities beneficially owned at that time by all the Holders (yother than Investments LP) requesting to participate in the securities Required Registration; provided, however, that in the event the Company will not, by virtue of this paragraph, include in any such registration all of the Registrable Securities of any Holder requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investorregistration, allocated (if necessary) pro rata among such Charter InvestorsHolder may, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on upon written notice to the basis Company given within 3 days of the relative number time such Holder first is notified of (I) such matter, reduce the amount of Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company it desires to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the Holders not so reducing shall be entitled to a corresponding increase in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the amount of Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineregistration.
Appears in 1 contract
Priority in Incidental Registrations. If the managing underwriter of (i) a registration pursuant to this Section 3 shall advise 2.2 involves an underwritten offering of the Company in writing thatsecurities so being registered, in its view, whether or not for sale for the number or mix account of securities (including all Registrable Securities) which the Company, to be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the Charter InvestorsRegistrable Securities so requested to be registered for sale for the account of Holders of Registrable Securities are also to be included in such underwritten offering, and (ii) the Softbank Investors managing underwriter of such underwritten offering shall inform the Company and any other persons intend the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to include be included in such registration exceeds the Maximum Offering Size:
number which can be sold in (ior during the time of) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor")offering, then the Company will may include in such registration, in the priority listed below, offering all securities up to the Maximum Offering Size:
(A) first, securities of proposed by the Company to be sold for its own account and may decrease the account number of Registrable Securities and other securities of the Company;
Company that persons have requested to be included in such registration by (Ba) secondfirst decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, to the extent necessary, decreasing the Registrable Securities requested to be registered (xpro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to the filing of the registration statement with respect to such registration); provided, however, that the rights of Holders hereunder shall be subject to (i) the right of the Series A Persons requesting inclusion of securities in such registration to include all of the securities requested to be registered by such Series A Persons in such registration without reduction prior to the inclusion of any Registrable Securities requested to be included in such registration pursuant to this Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities 2.2., and (yii) the rights of Series B Persons requesting registration to include securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) on a pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included of Holders hereunder in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to same manner as described in Section 3 2.1(c) hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine.
Appears in 1 contract
Samples: Registration Rights Agreement (Bionumerik Pharmaceuticals Inc)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 2.2 involves a Public Offering and the managing underwriter shall advise the Company in writing that, in its view, the number or mix of securities (including all Registrable SecuritiesCommon Shares) which the Company, the Charter Investors, the Softbank Investors and any other persons Persons intend to include in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(Ai) firstFIRST, securities of the Company Priority Securities to be sold for the Company's own account or as a result of the Company;a demand by a securityholder (pursuant to Section 2.1 or otherwise); and
(Bii) secondSECOND, (x) the Registrable Securities Common Shares and shares of Common Stock requested to be included in such registration pursuant to Section 3 hereof 2.2 by any Charter Investor or Softbank Investor holding such the Investors. The number of Registrable Securities Common Shares which can be sold pursuant to this paragraph (ii) (the "REMAINING AVAILABILITY") shall be allocated among the Investors as follows: The lesser of (A) 30% of the sum of (1) number of Registrable Common Shares requested to be included by Cisco and (2) the number of Registrable Common Shares underlying shares of Series C Preferred Stock requested to be included by the MSVP Investors and (B) the Remaining Availability shall be allocated to Cisco and the MSVP Investors in the ratio 8.3:1. Any unused portion of the Remaining Availability after application of the preceding sentence up to the lesser of (x) 30% of the number of Registrable Common Shares (other than Registrable Common Shares underlying shares of Series C Preferred Stock) requested to be included by the MSVP Investors and (y) such unused portion of the securities Remaining Availability shall then be allocated pro rata among the MSVP Investors on the basis of the number of shares each MSVP Investor has requested to be included in such registration. Any unused portion of the Remaining Availability after application of the preceding sentence up to the lesser of (x) the number of Registrable Common Shares requested to be included by Cisco (but not in excess of (1) 30% of the number of Registrable Common Shares requested to be included by Cisco less (2) the number of Registrable Common Shares allocated to Cisco pursuant to the second preceding sentence) and (y) such unused portion of the Remaining Availability shall then be allocated to Cisco. Any unused portion of the Remaining Availability after application of the preceding sentence up to the lesser of (x) the number of Registrable Common Shares requested to be included by the MSVP Investors (but not in excess of (1) 30% of the number of Registrable Common Shares underlying shares of Series C Preferred Stock requested to be included by the MSVP Investors less (2) the number of Registrable Common Shares allocated to the MSVP Investors pursuant to the third preceding sentence) and (y) such unused portion of the Remaining Availability shall then be allocated to the MSVSP Investors. Any unused portion of the Remaining Availability after application of the preceding four sentences shall be allocated pro rata among the Investors whose requests for inclusion in such registration have not theretofore been satisfied in full on the basis of the number of shares requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determinethat have not theretofore been included.
Appears in 1 contract
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 2.2 involves an underwritten offering, and the managing underwriter shall advise the Company in writing (with a copy to the Participating Holders), that, in its viewopinion, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors requested and any other persons intend otherwise proposed to include be included in such registration exceeds the Maximum Offering Size:
(i) If number which can be sold in such registration was initiated by offering within a price range acceptable to the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
extent of the number which the Company is so advised can be sold in such offering (A1) if the registration is a primary registration on behalf of the Company, first, securities of the Company proposed by the Company to be sold for the account its own account; second, securities of the Company;
(B) second, (x) Existing Rights Holders and the Registrable Securities Warrant Rights Holders requested to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding the exercise of the piggyback registration rights granted to such Existing Rights Holders and Warrant Rights Holders, and third, Registrable Securities of the Participating Holders (other than the Existing Rights Holders and (y) the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand InvestorWarrant Rights Holders ), allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors Participating Holders on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investorseach Participating Holder beneficially owns, and (II2) Parity Piggyback Registration Securities held by if the holders of Parity Piggyback Registration Securities; and
(C) third, securities registration is a registration on behalf of the Company Existing Rights Holders or the Warrant Rights Holders pursuant to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up rights granted to the Maximum Offering Size:
(A) Existing Rights Holders or Warrant Rights Holders, as applicable, first, the securities Registrable Securities requested to be registered by the Existing Rights Holders and the Warrant Rights Holders pro rata among such Demand Investor;
(B) Existing Rights Holders and Warrant Rights Holders on the basis of the relative number of Registrable Securities each such holder beneficially owns, second, the Registrable Securities requested to be included in such registration by the Charter Investors, Participating Holders (other than the Softbank Investors Existing Rights Holders and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereofWarrant Rights Holders), allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities Participating Holders on the basis of the relative number of securities of the Company held by Registrable Securities each such Charter Investorholder beneficially owns, Softbank Investor or holder of Piggyback Registration Securities;
(C) and third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of proposed by the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineits own account.
Appears in 1 contract
Samples: Registration Rights Agreement (FriendFinder Networks Inc.)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 any underwritten offering shall advise inform the Company in writing that, in by letter of its view, opinion that the number or mix type of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors Securities and any other persons intend Other Securities requested to include be included in such registration exceeds would materially adversely affect such offering, and the Maximum Offering Size:
(i) If Company has so advised the Requesting Holders and the holders of Other Securities that have requested Other Securities to be included in such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand InvestorOther Requesting Holders")) in writing, then the Company will include in such registration, in the priority listed below, securities up to the extent of the number and type which the Company is so advised can be sold in (or during the time of) such offering (the "Incidental Maximum Offering Size:Amount"):
(A) if such registration is the first or second registration initiated pursuant to Section 2.1 of the HWH Agreement: first, securities of the Company to be sold for the account of the Company;
(B) second, (x) the Registrable Securities requested to be included in such registration pursuant up to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable the Recapture Amount; second, HWH Securities and (y) the securities requested to be included in such registration by any holder up to an amount equal to the lesser of Parity Piggyback Registration (i) the aggregate amount of HWH Securities requested to be included in such registration and (ii) 85% of the Incidental Maximum Amount less the Recapture Amount; third, Third Party Securities requested to be included in such registration to the extent required to be included therein pursuant to the Stockholders Agreement, pro rata (based on the number of Third Party Securities requested to be included in such registration) among the Third Party Requesting Holders requesting participation in such registration; fourth, Registrable Securities requested to be included in such registration up to an amount equal to the lesser of (i) the aggregate amount of Registrable Securities requested to be included in such registration, (ii) the excess of the Incidental Maximum Amount over the amount provided for in the three preceding paragraphs and (iii) 15% of the Incidental Maximum Amount; fifth, Registrable Securities and Other Securities requested to be included in such registration, up to the aggregate amount requested by any Demand Investor, allocated (if necessary) pro rata among the Selling Holders and HWH Selling Holders to be included in such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis registration in excess of the relative number of (I) Registrable Securities held by amounts provided for in the Charter Investors preceding paragraphs; and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) thirdsixth, securities of proposed by the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investorits own account;
(B) if such registration is the third or fourth registration initiated pursuant to Section 2.1 of the HWH Agreement: first, Third Party Securities requested to be included in such registration to the extent required to be included therein pursuant to the Stockholders Agreement, pro rata (based on the number of Third Party Securities requested to be included in such registration) among the Third Party Requesting Holders requesting participation in such registration; second, Registrable Securities and HWH Securities requested to be included in such registration, pro rata (based on the Registrable number of securities of the Company held by each Requesting Holder and each HWH Selling Holder) among such Requesting Holders and HWH Selling Holders; and third, securities proposed by the Company to be sold for its own account;
(C) if such registration is initiated by the Third Party Selling Holders pursuant to Section 3(b) of the Stockholders Agreement: first, Third Party Securities requested to be included in such registration by the Charter Investors, Third Party Requesting Holders to the Softbank Investors and the holders of Parity Piggyback Registration Securities extent required to be included therein pursuant to Section 3 hereofthe Stockholders Agreement, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities (based on the basis number of Third Party Securities requested to be included in such registration); second, Registrable Securities and HWH Securities requested to be included in such registration, pro rata (based on the relative number of securities of the Company held by each Requesting Holder and each HWH Requesting Holder) among such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) Requesting Holders and HWH Requesting Holders; and third, securities of proposed by the Company to be sold for the account of the Companyits own account; and
(D) fourthin all other incidental registrations: first, securities of proposed by the Company to be sold for its own account; second, Third Party Securities requested to be included in such registration to the account extent required to be included therein pursuant to the Stockholders Agreement and HWH Securities, pro rata (based on the number of other personsOther Securities requested to be included in such registration by each Other Requesting Holder) among the Other Requesting Holders requesting participation in such registration; and third, with such Registrable Securities; provided, that from and after the date that the Stockholders Agreement is no longer in effect, (x) all references to Third Party Securities in the priorities among them set forth in clauses (A) and (B) above shall be deleted and the priorities provided for herein shall be automatically adjusted accordingly, (y) clause (C) above shall be deleted in its entirety, and (z) clause (D) shall be redesignated as the Company clause (C) and shall determine.be amended in its entirety to read as follows:
Appears in 1 contract
Samples: Registration Rights Agreement (Playtex Products Inc)
Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 2(a) involves an underwritten offering and the managing underwriter of a registration pursuant to this Section 3 shall advise advises the Company in writing that, in its viewopinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 2, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or mix distribution of securities (including all Registrable Securities) which such shares of Common Stock, then the Company, the Charter Investors, the Softbank Investors and any other persons intend to Company shall include in such registration exceeds only such maximum number of Registrable Securities which, in the Maximum Offering Size:
reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) If such registration was initiated by first, all of the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then shares of Common Stock that the Company will include in such registrationproposes to sell for its own account, in the priority listed below, securities up to the Maximum Offering Size:
if any; (A) first, securities of the Company to be sold for the account of the Company;
(Bii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration; and (xiii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such registration Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities and (ybased on the number of shares of Common Stock that such holders(s) the securities of Registrable Securities shall have requested to be included therein. Notwithstanding the foregoing, if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion, or exclude shares completely, in such registration by any holder of Parity Piggyback Incidental Registration Securities and by any Demand Investor, allocated (if necessary) on a basis other than a pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registrationif, in the priority listed belowreasonable opinion of such underwriter or underwriters, securities up selection on such other basis, or inclusion of such shares, would be material to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis success of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineoffering.
Appears in 1 contract
Samples: Registration Rights Agreement (Fifty Three Dredging Corp)
Priority in Incidental Registrations. If the managing underwriter of (i) a registration pursuant to this Section 3 shall advise 2.2 involves an underwritten offering of the Company in writing thatsecurities so being registered, in its view, whether or not for sale for the number or mix account of securities (including all Registrable Securities) which the Company, to be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the Charter InvestorsRegistrable Securities so requested to be registered for sale for the account of Holders of Registrable Securities are also to be included in such underwritten offering, and (ii) the Softbank Investors managing underwriter of such underwritten offering shall inform the Company and any other persons intend the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to include be included in such registration exceeds the Maximum Offering Size:
number which can be sold in (ior during the time of) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor")offering, then the Company will may include in such registration, in the priority listed below, offering all securities up to the Maximum Offering Size:
(A) first, securities of proposed by the Company to be sold for its own account and may decrease the account number of Registrable Securities and other securities of the Company;
Company that persons have requested to be included in such registration by (Ba) secondfirst decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, to the extent necessary, decreasing the Registrable Securities requested to be registered (xpro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to the filing of the registration statement with respect to such registration); provided, however, that the rights of Holders hereunder shall be subject to (i) the right of the Series A Persons requesting inclusion of securities in such registration to include all of the securities requested to be registered by such Series A Persons in such registration without reduction prior to the inclusion of any Registrable Securities requested to be included in such registration pursuant to this Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities 2.2., and (yii) the rights of Series B Persons, Series C Persons, Series D Persons, Series E Persons, Series F Persons, and Warrant Purchasers requesting registration to include securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) on a pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included of Holders hereunder in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to same manner as described in Section 3 2.1(c) hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine.
Appears in 1 contract
Samples: Registration Rights Agreement (Bionumerik Pharmaceuticals Inc)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 2(b) involves an Underwritten Offering of the securities so being registered, whether or not for sale for the account of Wyndham, and the sole Under writer or the lead managing Underwriter, as the case may be, of such Underwritten Offering shall advise the Company Wyndham in writing (with a copy to each Initial Holder of Registrable Securities requesting registration) on or before the date 5 days prior to the date then scheduled for such offering that, in its viewopinion, the number or mix amount of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend to include in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities of the Company to be sold for the account of the Company;
(B) second, (x) the Registrable Securities requested to be included in such registration exceeds the amount which can be sold in (or during the time of) such offering without adversely affecting the distribution of the securities being offered, then Wyndham will include in such registration: first, all the securities entitled to be sold pursuant to Section 3 hereof by such Registration Statement without reference to the incidental registra tion rights of any Charter Investor or Softbank Investor holding such holder (including the Holders), and second, the amount of other securities (including Registrable Securities and (ySecurities) the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investorregistra tion that Wyndham is so advised can be sold in (or during the time of) such offering, allocated (allocated, if necessary) , pro rata among the holders (including the Holders) thereof requesting such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors registration on the basis of the relative number of the securities (Iincluding Registrable Securities) Registrable Securities held by beneficially owned at the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held time by the holders (including the Holders) requesting inclusion of Parity Piggyback Registration Securitiestheir securities; and
(C) thirdprovided, securities however, that in the event Wyndham will not, by virtue of the Company to be sold for the account of other personsthis paragraph, with such priorities among them as the Company shall determine. or
(ii) If include in any such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, all of the Registrable Securities of any Holder requested to be included in such registration by registration, such Holder may, upon written notice to Wyndham given within 3 days of the Charter Investorstime such Holder first is notified of such matter, reduce the Softbank Investors amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the holders Holders not so reducing shall be entitled to a corresponding increase in the amount of Parity Piggyback Registration Registrable Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with included in such priorities among them as the Company shall determineregistration.
Appears in 1 contract
Samples: Registration Rights Agreement (Paine Webber Capital Inc)
Priority in Incidental Registrations. If the managing underwriter of (i) a registration pursuant to this Section 3 shall advise the Company in writing that, in its view, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend to include in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities 2.2 involves an underwritten offering of the Company to be sold securities so being registered, whether or not for sale for the account of the Company;
, and (ii) the managing underwriter of such underwritten offering shall inform the Company and the holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to be included in such registration exceeds the number which can be sold in (or during the time of) such offering, then (A) in the case of an offering for the account of the Company or which was demanded by the holders of the Registrable Securities - July 1999 pursuant to the rights of the holders of the Registrable Securities - July 1999, registration for the Registrable Securities shall be cut back such that (i) no holder of Registrable Securities shall be entitled to participate in such underwritten public offering unless all shares of Common Stock proposed to be sold by the Company for its own account have been included in such underwritten public offering, and (ii) after the Company has included its own shares of Common Stock, the holders of Registrable Securities and the holders of other securities as to which the Company has granted registration rights including (without limitation) the Registrable Securities - July 1999 ("Other Registrable Securities"), including incidental registration rights, shall be entitled to include their Registrable Securities and Other Registrable Securities in an amount up to the amount that such managing underwriter or underwriters advise may be included therein (allocated among the holders of Registrable Securities and the holders of other Registrable Securities pro rata on the basis of the number of securities requested to be included therein by each such holder) and (B) secondin the case of an offering that was commenced as a result of the exercise of demand registration rights by Persons other than E-P or other holders of Registrable Securities, the Persons commencing such registration and the holders of Registrable Securities shall be entitled to include their Registrable Securities and Other Registrable Securities in an amount up to the amount such managing underwriters or underwriters advise may be included therein (xallocated among the persons commencing such registration and the holders of Registrable Securities pro rata on the basis of the number of securities requested to be so included therein by each such person or holder). If, however, the registration was initiated by the Company within one hundred twenty (120) days of a requested registration and is in lieu thereof, then the Company shall include in the registration all Registrable Securities requested to be included in such registration pursuant and shall decrease the number of securities proposed to Section 3 hereof be sold by any Charter Investor or Softbank Investor holding such Registrable Securities the Company and (y) the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on to the basis of extent necessary to reduce the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such the registration to the level recommended by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determinemanaging underwriter.
Appears in 1 contract
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise 2.2 involves an underwritten offering and the managing Underwriter advises the Company in writing that, in its viewopinion, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors Holders and any other persons intend Persons propose to include in such registration exceeds the Maximum Offering Size:
(i) If number which can be sold in such registration was initiated by offering without a reasonable likelihood of adversely affecting the Companyprice, and not by any other shareholder holding demand registration rights (a "Demand Investor")timing or distribution of the securities being offered, then the Company will include in such registrationregistration (i) FIRST, in all the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities of the Company initially proposes to be sold sell for its own account if the Company initiates such Incidental Registration or for the account of the Company;
(B) second, (x) the Registrable Securities requested to be included in such registration any security holder pursuant to any contractual requirement to register securities (unless such holder is exercising incidental registration rights subject to a proration provision similar to the provisions set forth in this Section 3 hereof by any Charter Investor 2.2(b) or Softbank Investor holding such Registrable Securities and (ydemand registration rights subject to a proration provision similar to the provisions applicable to a Demanding Party as set forth in Section 2.1(c) hereof, in which case the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis provisions of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
following clause (ii) If shall apply to the securities of such registration was initiated by a Demand Investorholder), then (ii) SECOND, to the extent that the number of securities referred to in clause (i) is less than the number of securities which the Company will include has been advised can be sold in such registrationoffering without having the adverse effect referred to above, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the all Registrable Securities requested to be included in such registration by the Charter InvestorsHolders pursuant to Section 2.2(a) and all securities of the class then being registered ("OTHER REGISTRABLE SECURITIES") requested to be included by any holder (each, the Softbank Investors and the holders an "OTHER HOLDER") of Parity Piggyback Registration Other Registrable Securities pursuant to Section 3 hereofany similar registration rights agreement, allocated PROVIDED, that if the number of Registrable Securities and Other Registrable Securities so requested to be included in such registration, together with the number of securities to be included in such registration pursuant to clause (if necessaryi) pro rata among all of this Section, exceeds the number which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the number of such Charter Investors, Softbank Investors Registrable Securities and holders of Parity Piggyback Registration Other Registrable Securities requested to be included in such registration by the Holders pursuant to Section 2.2(a) and the Other Holders pursuant to any similar registration rights agreement shall be limited to such extent and shall be allocated PRO RATA among (A) all Holders requesting such registration pursuant to Section 2.2(a) and (B) all Other Holders requesting such registration pursuant to any similar registration rights agreement on the basis of the relative number of securities of requested to be included in such registration, and (iii) THIRD, if the Company held by each does not initiate the Incidental Registration, to the extent the number of securities referred to in clauses (i) and (ii) is less than the number of securities which the Company has been advised can be sold in such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) thirdoffering without having the adverse effect referred to above, securities of the class then being registered the Company proposes to sell for its own account up to the number of such securities that, in the opinion of the managing Underwriter, can be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with without having such priorities among them as the Company shall determineadverse effect.
Appears in 1 contract
Samples: Registration Rights Agreement (Weight Watchers International Inc)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 any underwritten offering shall advise inform the Company in writing that, in by letter of its view, belief that the number or mix type of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend Securities requested to include be included in such registration exceeds the Maximum Offering Size:
(i) If would materially adversely affect such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor")offering, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
extent of the number and type which the Company is so advised can be sold in (Aor during the time of) such offering (i) first, all securities of proposed by the Company to be sold for the account of the Company;
its own account, if any; (Bii) second, and only if all the securities proposed by the Company to be sold for its own account have been so included, such Registrable Securities and securities of the Company requested for inclusion in such registration pursuant to the exercise of piggyback registration rights under Section 4(a) of the Nestle Registration Rights Agreement (x) the 'Nestle Securities'), pro rata among the holders of the Registrable Securities and Nestle Securities on the basis of the respective percentages of the total amount of securities requested to be so included by such holders which are represented by Registrable Securities, on the one hand, and Nestle Securities, on the other hand; and (iii) third, and only if all of the Registrable Securities and Nestle Securities have been included in such registration, any other securities of the Company requested to be included in such registration; provided, however, that if such registration was as a result of the exercise of a demand registration right pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding such of the Nestle Registration Rights Agreement, and the Nestle Holders have consented to the inclusion of Registrable Securities and (y) in such offering, then the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investorshall be selected, allocated after all 'Registrable Securities' (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, defined in the priority listed below, securities up to the Maximum Offering Size:
(ANestle Registration Rights Agreement) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested originally proposed to be included in such registration by have been so included, (y) first, from the Charter InvestorsRegistrable Securities and (z) second, and only if all the Softbank Investors and the holders of Parity Piggyback Registration Registrable Securities pursuant to Section 3 hereofhave been included in such registration, allocated (if necessary) pro rata among all of from any other securities eligible for inclusion in such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineregistration."
Appears in 1 contract
Samples: Registration Rights Agreement (Nestle Holdings Inc)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise 2(a) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its viewopinion, the total number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend shares of Common Stock to include in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include be included in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities of the Company to be sold for the account of the Company;
(B) second, (x) including the Registrable Securities requested to be included pursuant to this Section 2, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of shares of Common Stock which, in the reasonable opinion of such underwriter or underwriters, can be sold, in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, unless such registration is commenced pursuant to Section 3 hereof exercise of a valid demand registration then all of the shares of Common Stock being registered by such holder shall be first and the Common Stock being registered by the Company for its own account shall be second, (ii) next, all of the shares of Common Stock being registered pursuant to a Demand Registration (as hereinafter defined) or any Charter Investor or Softbank Investor holding such Registrable Securities and other demand registration rights exercised after registration is commenced, (yiii) next, the securities shares of Common Stock being registered by holders with registration rights requested to be included in such registration by any holder of Parity Piggyback Incidental Registration Securities and by any Demand Investor, (allocated (if necessary) among such holders on a pro rata among such Charter Investors, Softbank Investors, holders basis based upon their respective percentage of Parity Piggyback Registration Securities and Demand Investors on the basis ownership of the relative total number of (I) Registrable Securities held by the Charter Investors and the Softbank Investorsshares of Common Stock then outstanding), and (IIiv) Parity Piggyback next, the shares of Common Stock being registered by holders without registration rights that are permitted to participate in such Incidental Registration Securities held by the (allocated among such holders on a pro rata basis based upon their respective percentage of Parity Piggyback Registration Securities; and
(C) third, securities ownership of the Company to be sold total number of shares of Common Stock then outstanding). Notwithstanding the foregoing, if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for the account of other personsinclusion, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investoror exclude shares completely, then the Company will include in such registrationIncidental Registration on a basis other than a pro rata basis if, in the priority listed belowreasonable opinion of such underwriter or underwriters, securities up selection on such other basis, or inclusion of such shares, would be material to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis success of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineoffering.
Appears in 1 contract
Samples: Registration Rights Agreement (Royster-Clark Nitrogen Realty LLC)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant ------------------------------------ to this Section 3 2(b) involves an Underwritten Offering of the securities so being registered, whether or not for sale for the account of the Company, and the sole Underwriter or the lead managing Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Initial Holder of Registrable Securities requesting registration) on or before the date 5 days prior to the date then scheduled for such offering that, in its viewopinion, the number or mix amount of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend requested to include be included in such registration exceeds the Maximum Offering Size:
amount which can be sold in (ior during the time of) If such registration was initiated by offering without adversely affecting the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor")distribution of the securities being offered, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) registration first, all the securities of the Company entitled to be sold for pursuant to such Registration Statement without reference to the account incidental registration rights of the Company;
any holder (B) including Holders), and second, the amount of other securities (xincluding Registrable Securities) the Registrable Securities requested to be included in such registration pursuant to Section 3 hereof that the Company is so advised can be sold in (or during the time of) such offering, allocated, if necessary, pro rata among the holders (including the Holders) thereof requesting such registration on the basis of the number of the securities (including Registrable Securities) beneficially owned at the time by the holders (including Holders) requesting inclusion of their securities; provided, however, that in the event the Company will not, by virtue of this paragraph, include in any Charter Investor or Softbank Investor holding such registration all of the Registrable Securities and (y) the securities of any Holder requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investorregistration, allocated (if necessary) pro rata among such Charter InvestorsHolder may, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on upon written notice to the basis Company given within 3 days of the relative number time such Holder first is notified of (I) such matter, reduce the amount of Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company it desires to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the Holders not so reducing shall be entitled to a corresponding increase in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the amount of Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineregistration.
Appears in 1 contract
Samples: Registration Rights Agreement (United States Filter Corp)
Priority in Incidental Registrations. If the managing underwriter of a registration effected pursuant to this Section 3 shall advise advises the Company in writing that, in its viewopinion, either (y) the number or mix of equity securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors Holders and any other persons intend to include in such registration exceeds the Maximum Offering Size:
largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold, or (iz) If the inclusion in such registration was initiated by the Companyoffering of Registrable Securities would have a material adverse effect on such offering, and not by any other shareholder holding demand registration rights (a "Demand Investor")then, then in either such case, the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
registration (Ai) first, all the securities of the Company proposes to be sold sell for the account of the Company;
its own account, (Bii) second, (x) all the Registrable Securities requested each Holder proposes to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities and sell for its own account (y) provided, however, that if the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities Holders pursuant to Section 3 4(a) hereof, together with the number of Registrable Securities to be included in such registration pursuant to clause (i) of this Section 4(b), exceeds the number which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the number of such Registrable Securities to be included in such registration by the Holders shall be allocated pro rata among such Holders on the basis of the relative number of Registrable Securities each such Holder has requested to be included in such registration), and (iii) third, to the extent that the number of equity securities which the Company proposes to sell for its own account and the Registrable Securities which the Holders have requested to be included in such registration pursuant to Section 4(a) hereof is, in the aggregate, less than the number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the equity securities requested to be sold for the account of any other persons (provided, however, that if necessarythe number of securities proposed to be registered by such other persons, together with the number of equity securities to be included in such registration pursuant to clauses (i) and (ii) of this Section 4(b), exceeds the number which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the number of such securities included in such registration pursuant to this Section 4(b)(iii) shall be allocated pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities other persons on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company other person has requested to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with included in such priorities among them as the Company shall determineregistration).
Appears in 1 contract
Samples: Registration Rights Agreement (Overseas Shipholding Group Inc)
Priority in Incidental Registrations. If the managing underwriter of (i) a registration pursuant to this Section 3 shall advise 2.2 involves an underwritten offering of the Company in writing thatsecurities so being registered, in its view, whether or not for sale for the number or mix account of securities (including all Registrable Securities) which the Company, to be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the Charter InvestorsRegistrable Securities so requested to be registered for sale for the account of Holders of Registrable Securities are also to be included in such underwritten offering, and (ii) the Softbank Investors managing underwriter of such underwritten offering shall inform the Company and any other persons intend the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to include be included in such registration exceeds the Maximum Offering Size:
number which can be sold in (ior during the time of) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor")offering, then the Company will may include in such registration, in the priority listed below, offering all securities up to the Maximum Offering Size:
(A) first, securities of proposed by the Company to be sold for its own account and may decrease the account number of Registrable Securities and other securities of the Company;
Company that persons have requested to be included in such registration by (Ba) secondfirst decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, to the extent necessary, decreasing the Registrable Securities requested to be registered (xpro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to the filing of the registration statement with respect to such registration); provided, however, that the rights of Holders hereunder shall be subject to (i) the right of the Series A Persons requesting inclusion of securities in such registration to include all of the securities requested to be registered by such Series A Persons in such registration without reduction prior to the inclusion of any Registrable Securities requested to be included in such registration pursuant to this Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities 2.2., and (yii) the rights of Series B Persons, Series C Persons and Series D Persons requesting registration to include securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) on a pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included of Holders hereunder in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to same manner as described in Section 3 2.1(c) hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine.
Appears in 1 contract
Samples: Registration Rights Agreement (Bionumerik Pharmaceuticals Inc)
Priority in Incidental Registrations. If a registration pursuant ------------------------------------ to Section 3
(a) involves an underwritten offering and the managing underwriter of a registration pursuant to this Section 3 shall advise (or underwriters) advises the Company in writing that, in its viewopinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or mix distribution of securities (including all Registrable Securities) which such shares of Common Stock, then the Company, the Charter Investors, the Softbank Investors and any other persons intend to Company shall include in such registration exceeds only such maximum number of Registrable Securities which, in the Maximum Offering Size:
opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) If such registration was initiated by first, all of the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then shares of Common Stock that the Company will include in such registrationproposes to sell for its own account, in the priority listed belowif any, securities up to the Maximum Offering Size:
(A) first, securities of the Company to be sold for the account of the Company;
(Bii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (xas hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such registration Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holder(s) of Registrable Securities pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding clause (iii) above, such shares shall be allocated pro rata among the holder(s) of Registrable Securities and (ybased on the number of shares of Common Stock that such holder(s) the securities of Registrable Securities shall have requested to be included therein; provided, -------- however, that (other than with respect to holders of Registrable Securities that ------- are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such registration by any holder of Parity Piggyback Incidental Registration Securities and by any Demand Investor, allocated (if necessary) on a basis other than a pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registrationif, in the priority listed belowreasonable opinion of such underwriter or underwriters, securities up selection on such other basis would be material to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis success of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineoffering.
Appears in 1 contract
Samples: Registration Rights Agreement (Delco Remy International Inc)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise 4 involves an underwritten offering and the managing underwriter advises the Company in writing that, in its viewopinion, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend Applicable Securities requested to include be included in such registration exceeds the Maximum Offering Size:
number which can be sold in such offering, so as to be likely to have an adverse effect on the successful marketing of such offering (i) If including the price at which such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"Applicable Securities can be sold), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
registration (Ai) first, securities 100% of the Applicable Securities the Company proposes to be sold for the account of the Company;
sell and (Bii) second, (x) to the extent of the number of Applicable Registrable Securities (and Applicable Securities requested to be registered by other Persons exercising a demand registration right or registration rights similar to those of the Holders pursuant to this Section 4) requested to be included in such registration pursuant which, in the opinion of such managing underwriter, can be sold without having the adverse effect referred to Section 3 hereof by any Charter Investor or Softbank Investor holding such above, the number of Applicable Registrable Securities (and such Applicable Securities) which the Holders (yand such other Persons) the securities have requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investorregistration, such amount to be allocated (if necessary) pro rata among all requesting Holders (and such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors other Persons) on the basis of the relative number of (I) shares of New Common Stock represented by all Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor Holder (or holder shares of Piggyback Registration Securities;
New Common Stock represented by all New Equity Securities then held by such other Person as to which such Person has similar registration rights) (Cin each case calculated on a fully diluted basis and without regard as to whether any such Registrable Security or New Equity Security is then eligible for conversion into shares of New Common Stock or then exercisable or exchangeable for shares of New Common Stock) third, (provided that any securities of thereby allocated to any such Holder (or such other Person) that exceed such Holder’s (or such other Person’s) request will be reallocated among the Company to be sold for the account of the Company; and
remaining requesting Holders (Dand such other Persons) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determinein like manner).
Appears in 1 contract
Samples: Registration Rights Agreement (World Color Press Inc.)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise 2.2 involves an underwritten public offering and the managing underwriter advises the Company in writing that, in its view, the number or mix of equity securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors Shareholder and any other persons intend to include in such registration exceeds the largest number of securities that can, in the opinion of the managing underwriter, be sold in such offering (the "Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed belowfollowing priority, securities up to the Maximum Offering Size:
(Ai) first, securities of all the Company Priority Securities (including any to be sold for the Company's own account of the Company;
(B) second, (x) the Registrable Securities requested to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities and (y) the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, for other holders of Parity Piggyback Registration Priority Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other personsexercising demand registration rights), with such priorities among them as the Company shall may determine. or; and
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) firstsecond, the equity securities requested to be registered by such Demand Investor;
(B) second, sold for the Registrable Securities requested to be included in such registration by account of the Charter Investors, the Softbank Investors Shareholder and the holders of Parity Piggyback Registration Registrable Securities pursuant to Section 3 hereofand Executive Registrable Securities (as defined in the Consent and Modification Agreement dated January 8, allocated (if necessary1996, by and among the Company, Branxxxx Investment Partners II, L.P., Sears Pension Trust and Laurxxxx X. Xxxxxx) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of equity securities of the Company held by each that all such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;persons have requested to be included in such registration; and
(Ciii) third, the equity securities of the Company requested to be sold for the account of all other persons pro rata on the Companybasis of the relative number of equity securities that all such persons have requested to be included in such registration; and
(D) fourthprovided, however, that if securities owned by any executive officer of the Company are included in the Priority Securities, then any Registrable Securities that the Shareholder proposes to include in such registration shall also be deemed Priority Securities, and to the extent securities owned by any such executive officer are included in the registration, the Shareholder's Registrable Securities shall be included in such registration pro rata with those owned by the Shareholder and all executive officers on the basis of the relative number of equity securities that the Shareholder and all such executive officers have requested to be sold for the account of other persons, with included in such priorities among them as the Company shall determineregistration.
Appears in 1 contract
Samples: Registration Rights Agreement (Healthplan Services Corp)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise the Company in writing that, in its view, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend to include in such registration exceeds the Maximum Offering Size:
(i) If such a Piggyback Registration is an underwritten primary registration was initiated by on behalf of the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the managing underwriters advise the Company will include that in such registration, in their opinion the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities number of the Company to be sold for the account of the Company;
(B) second, (x) the Registrable Securities requested to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities and (y) the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on exceeds the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to which can be sold for the account of other personsin such offering, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
: (Ai) first, the securities requested the Company proposes to be registered by such Demand Investor;
sell, and (Bii) second, the Registrable Securities requested securities proposed to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessaryincluding any Participating Holder) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of Participating Holders exercising their respective piggyback registration rights thereof based upon the relative total number of securities which each such Participating Holder beneficially owns.
(ii) If a Piggyback Registration is an underwritten secondary registration on behalf of holders (other than any Holders hereunder) of the Company's securities, and the managing underwriters advise the Company held by each that in their opinion the number of securities requested to be included in such Charter Investorregistration exceeds the number which can be sold in such offering, Softbank Investor or holder of Piggyback Registration Securities;
the Company will include in such registration: (Ci) first, the securities which such holders (other than any Participating Holder) propose to sell; (ii) second, the securities the Company proposed to be included in such registration; and (iii) third, the securities of the Company proposed to be sold for included in such registration by the account holders (including any Participating Holder) pro rata among the Participating Holders exercising their respective piggyback registration rights based upon the total number of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with which each such priorities among them as the Company shall determineParticipating Holder beneficially owns.
Appears in 1 contract
Samples: Registration Rights Agreement (Sun Healthcare Group Inc)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise 2(a)(i) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its viewopinion, the total number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend shares of Common Stock to include in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include be included in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities of the Company to be sold for the account of the Company;
(B) second, (x) including the Registrable Securities requested to be included pursuant to this Section 2(a), exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without materially adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities, which, in the reasonable opinion of such underwriter, can be sold in the following order of priority: (A) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any; (B) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding such a Demand Registration; and (C) third, the Registrable Securities of the holder(s) of Registrable Securities requested and (y) the securities requested permitted to be included in such registration by any holder Incidental Registration. To the extent that shares of Parity Piggyback Common Stock to be included in the Incidental Registration must be allocated among the holder(s) of Registrable Securities and by any Demand Investorpursuant to clause (B) above, such units shall be allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders the holder(s) of Parity Piggyback Registration Registrable Securities and Demand Investors based on the basis of the relative number of (Ishares of Common Stock that such holder(s) of Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities have requested to be included therein. To the extent shares of that Common Stock to be included in such registration by the Charter Investors, the Softbank Investors and Incidental Registration must be allocated among the holders of Parity Piggyback Registration Registrable Securities pursuant to Section 3 hereofclause (C) above, such units shall be allocated (if necessary) pro rata among all the holder(s) of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Registrable Securities based on the basis of the relative number of securities shares of the Company held by each Common Stock that such Charter Investor, Softbank Investor or holder holder(s) of Piggyback Registration Securities;
(C) third, securities of the Company Registrable Securities shall have requested to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineincluded therein.
Appears in 1 contract
Samples: Registration Rights Agreement (Bio Key International Inc)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise involves an underwritten offering by Del Monte (as described in Section 3(a)(ii)) and the Company in writing managing underwriter with respect to such offering advises Del Monte that, in its viewopinion, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend to include in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities of the Company to be sold for the account of the Company;
(B) second, (x) the Registrable Securities requested to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities and (y) the securities requested to be included in such registration by any holder exceeds the largest number of Parity Piggyback Registration Securities and by any Demand Investorsecurities which can be sold in such offering without a reasonable likelihood of adversely affecting the price, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis timing or distribution of the relative number of securities being offered, then Del Monte will include in such registration (Ii) Registrable Securities held by first, all the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company Del Monte initially proposes to be sold sell for its own account if Del Monte initiates such registration or for the account of other personsany stockholder pursuant to any contractual requirement to register securities (unless such stockholder is exercising incidental registration rights subject to a proration provision similar to the provisions set forth in this Section 3(b) or demand registration rights subject to a proration provision similar to the provisions applicable to a Demand Party as set forth in Section 2(d) hereof, with such priorities among them as in which case the Company shall determine. or
provisions of the following clause (ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up shall apply to the Maximum Offering Size:
securities of such stockholder), (A) first, the securities requested to be registered by such Demand Investor;
(Bii) second, to the extent that the number of securities referred to in clause (i) is less than the number of securities which Del Monte has been advised can be sold in such offering without having the adverse effect referred to above, all Registrable Securities requested to be included in such registration by the Charter InvestorsHolders pursuant to Section 3(a), all securities of the Softbank Investors and the holders class then being registered ("Other Registrable Securities") requested to be included by any holder (each, an "Other Holder") of Parity Piggyback Registration Other Registrable Securities pursuant to any similar registration rights agreement and, if Del Monte does not initiate the registration, securities of the class then being registered which Del Monte proposes to sell for its own account ("Company Securities"), provided, that if the number of Registrable Securities, Other Registrable Securities and Company Securities so requested to be included in such registration, together with the number of securities to be included in such registration pursuant to clause (i) of this Section, exceeds the number which Del Monte has been advised can be sold in such offering without having the adverse effect referred to above, the number of such Registrable Securities, Other Registrable Securities and Company Securities requested to be included in such registration by the Holders pursuant to Section 3 hereof3(a), the Other Holders pursuant to any similar registration rights agreement and Del Monte shall be limited to such extent and shall be allocated (if necessary) pro rata among (A) all of Holders requesting such Charter Investorsregistration pursuant to Section 3(a), Softbank Investors (B) all Other Holders requesting such registration pursuant to any similar registration rights agreement and holders of Parity Piggyback Registration Securities (C) Del Monte, on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company requested to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with included in such priorities among them as the Company shall determineregistration.
Appears in 1 contract
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise the Company in writing that, in its view, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Mobius Investors and any other persons intend to include in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities of the Company to be sold for the account of the Company;
(B) second, (x) the Registrable Securities requested to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Mobius Investor holding such Registrable Securities and (y) the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) pro rata among such Charter Investors, Softbank Mobius Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by which the Charter Investors and the Softbank InvestorsMobius Investors have requested to be included in such registration, and (II) Parity Piggyback Registration Securities held by which the holders of Parity Piggyback Registration SecuritiesSecurities have requested to be included in such registration; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Mobius Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Mobius Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Mobius Investor or holder of Piggyback Registration SecuritiesSecurities has requested to be included in such registration;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine.
Appears in 1 contract
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise SECTION 2 involves an underwritten public offering and the managing underwriter or underwriters in its judgment advises the Company in writing that, in its viewopinion, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors Holders and any other persons Persons intend to include in such registration exceeds the Maximum Offering Size:
largest number of securities which can be sold in such offering without having an adverse effect on such offering (i) If including the price at which such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"securities can be sold), then the Company will shall include in such registrationregistration (i) FIRST, if the registration pursuant to this SECTION 2 was initiated by Other Holders exercising demand registration rights, 100% of the securities such Other Holders propose to sell (except to the extent the terms of such Other Holders' registration rights provide otherwise); (ii) SECOND, 100% of the securities the Company proposes to sell for its own account, if any; (iii) THIRD, to the extent that the number of securities which such Other Holders exercising demand registration rights and the Company propose to sell is, in the priority listed belowaggregate, less than the number of securities up to the Maximum Offering Size:
(A) first, securities of which the Company to has been advised can be sold for in such offering without having the account adverse effect referred to above, such number of Registrable Shares which the Company;
(B) second, (x) the Registrable Securities Holders have requested to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding and such Registrable Securities and (y) the number of securities which Other Holders have requested to be included in such registration, in each case pursuant to SECTION 2(a) or other piggyback or incidental registration by any holder rights and which, in the opinion of Parity Piggyback Registration Securities such managing underwriter or underwriters, can be sold without having the adverse effect referred to above, such number of Registrable Shares and by any Demand Investor, allocated (if necessary) securities to be included on a pro rata basis among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities all requesting Holders and Demand Investors Other Holders on the basis of the relative number of shares of Common Stock beneficially owned (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities as such term is used in Rule 13d-3 of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(iiExchange Act) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
Holders and Other Holders (B) secondPROVIDED, that if the number of Registrable Securities Shares requested to be included in such registration by the Charter InvestorsHolders pursuant to SECTION 2(a) and permitted to be included in such registration by the Holders pursuant to this SECTION 2(b) exceeds the number which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the Softbank Investors and number of such Registrable Shares to be included in such registration by the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, Holders shall be allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities Holders on the basis of the relative number of Registrable Shares each such Holder has requested to be included in such registration); and (iv) FOURTH, to the extent that the number of securities which are to be included in such registration pursuant to clauses (i), (ii) and (iii) of this SECTION 2(b) is, in the aggregate, less than the number of securities which the Company held by each has been advised can be sold in such Charter Investoroffering without having the adverse effect referred to above, Softbank Investor or holder such number of Piggyback Registration Securities;
(C) third, other securities of the Company requested to be sold included in the offering for the account of any other Persons which, in the Company; and
(D) fourthopinion of such managing underwriter or underwriters, can be sold without having the adverse effect referred to above, such number to be allocated pro rata among all holders of such other securities on the basis of the Company relative number of such other securities each other Person has requested to be sold for the account of other persons, with included in such priorities among them as the Company shall determineregistration.
Appears in 1 contract
Priority in Incidental Registrations. If the managing underwriter of (i) a registration pursuant to this Section 3 shall advise 2.2 involves an underwritten offering of the Company in writing thatsecurities so being registered, in its view, whether or not for sale for the number or mix account of securities (including all Registrable Securities) which the Company, to be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the Charter InvestorsRegistrable Securities so requested to be registered for sale for the account of Holders of Registrable Securities are also to be included in such underwritten offering, and (ii) the Softbank Investors managing underwriter of such underwritten offering shall inform the Company and any other persons intend the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to include be included in such registration exceeds the Maximum Offering Size:
number which can be sold in (ior during the time of) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor")offering, then the Company will may include in such registration, in the priority listed below, offering all securities up to the Maximum Offering Size:
(A) first, securities of proposed by the Company to be sold for its own account and may decrease the account number of Registrable Securities and other securities of the Company;
Company that persons have requested to be included in such registration by (Ba) secondfirst decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, to the extent necessary, decreasing the Registrable Securities requested to be registered (xpro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to the filing of the registration statement with respect to such registration); provided, however, that the rights of Holders hereunder shall be subject to (i) the right of the Series A Persons requesting inclusion of securities in such registration to include all of the securities requested to be registered by such Series A Persons in such registration without reduction prior to the inclusion of any Registrable Securities requested to be included in such registration pursuant to this Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities 2.2., and (yii) the rights of Series B Persons, Series C Persons, Series D Persons, Series F Persons, and Series G Persons requesting registration to include securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) on a pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included of Holders hereunder in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to same manner as described in Section 3 2.1(c) hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine.
Appears in 1 contract
Samples: Registration Rights Agreement (Bionumerik Pharmaceuticals Inc)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise 2 involves an underwritten offering and the managing underwriter in good faith advises the Company in writing that, in its viewopinion, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors Holders and any other persons Persons intend to include in such registration exceeds the Maximum Offering Size:
largest number of securities which can be sold in such offering without having an adverse effect on such offering (i) If including the price at which such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"securities can be sold), then the Company will shall include in such registration: (i) FIRST, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities 100% of the securities the Company proposes to be sold sell for its own account; and (ii) SECOND, such number of Registrable Shares which the account of the Company;
(B) second, (x) the Registrable Securities Holders have requested to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding and such Registrable Securities and (y) the number of securities which Other Holders have requested to be included in such registration by any holder which, in the opinion of Parity Piggyback Registration Securities such managing underwriter, can be sold without having the adverse effect referred to above, such number of Registrable Shares and by any Demand Investor, allocated (if necessary) securities of Other Holders to be included on a pro rata basis among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities all requesting Holders and Demand Investors Other Holders on the basis of the relative number of shares of Common Stock beneficially owned (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities as such term is used in Rule 13d-3 of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(iiExchange Act) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) secondHolders and Other Holders, PROVIDED that if the number of Registrable Securities Shares requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities Other Holders pursuant to Section 3 hereof2(a) of the Warrantholders Registration Rights Agreement and permitted to be included in such registration by the Other Holders pursuant to Section 2(b) of the Warrantholders Registration Rights Agreement exceeds the number which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the number of such Registrable Shares to be included in such registration by the Other Holders shall be allocated pro rata among such Other Holders on the basis set forth in Section 2(b) of the Warrantholders Registration Rights Agreement and, in such event, the Holders shall have no right to register shares pursuant to this Agreement; and (if necessaryiii) THIRD, to the extent that the number of securities which are to be included in such registration pursuant to clauses (i) and (ii), in the aggregate, is less than the number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, such number of other securities requested to be included in the offering for the account of any other Persons which, in the opinion of such managing underwriter, can be sold without having the adverse effect referred to above, such number to be allocated pro rata among all holders of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities other securities on the basis of the relative number of such other securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company other person has requested to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with included in such priorities among them as the Company shall determineregistration.
Appears in 1 contract
Samples: Shareholders Registration Rights Agreement (Burke Flooring Products Inc)
Priority in Incidental Registrations. If a registration pursuant ------------------------------------ to Section 3
(a) involves an underwritten offering and the managing underwriter of a registration pursuant to this Section 3 shall advise advises the Company in writing that, in its viewopinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or mix distribution of securities (including all Registrable Securities) which such shares of Common Stock, then the Company, the Charter Investors, the Softbank Investors and any other persons intend to Company shall include in such registration exceeds only such maximum number of Registrable Securities which, in the Maximum Offering Size:
reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) If such registration was initiated by first, all of the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then shares of Common Stock that the Company will include in such registrationproposes to sell for its own account, in the priority listed belowif any, securities up to the Maximum Offering Size:
(A) first, securities of the Company to be sold for the account of the Company;
(Bii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (xas hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such registration Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities and (ybased on the number of shares of Common Stock that such holder(s) the securities of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such registration by any holder of Parity Piggyback Incidental Registration Securities and by any Demand Investor, allocated (if necessary) on a basis other than a pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registrationif, in the priority listed belowreasonable opinion of such underwriter or underwriters, securities up selection on such other basis would be material to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis success of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineoffering.
Appears in 1 contract
Samples: Registration Rights Agreement (Dri Acquisition LLC)
Priority in Incidental Registrations. If the managing underwriter of (i) a registration ------------------------------------ pursuant to this Section 3 shall advise the Company in writing that, in its view, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend to include in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities 2.2 involves an underwritten offering of the Company to be sold securities so being registered, whether or not for sale for the account of the Company;
, and (ii) the managing underwriter of such underwritten offering shall inform the Company and the holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to be included in such registration exceeds the number which can be sold in (or during the time of) such offering, then (A) in the case of an offering for the account of the Company, registration for the Registrable Securities shall be cut back such that (1) no holder of Registrable Securities shall be entitled to participate in such underwritten public offering unless all shares of Common Stock proposed to be sold by the Company for its own account have been included in such underwritten public offering, and (2) after the Company has included its own shares of Common Stock, the holders of Registrable Securities and Persons other than Stockholders ("Other Persons") shall be entitled to include their ------------- Registrable Securities and Other Registrable Securities in an amount up to the amount that such managing underwriter or underwriters advise may be included therein (allocated among the holders of Registrable Securities and Other Registrable Securities pro rata on the basis of the number of Registrable Securities and Other Registrable Securities requested to be included therein by each such holder) and (B) secondin the case of an offering that was commenced as a result of the exercise of demand registration rights by Other Persons, the Other Persons commencing such registration and the holders of Registrable Securities shall be entitled to include their Other Registrable Securities and Registrable Securities in an amount up to the amount such managing underwriters or underwriters advise may be included therein (xallocated first to the Other Persons commencing such Registration and thereafter among the holders of Registrable Securities. If, however, the registration was initiated by the Company within one hundred twenty (120) days of a requested registration and is in lieu thereof, then the Company shall include in the registration all Registrable Securities or Other Registrable Securities requested to be included in such registration pursuant and shall decrease the number of securities proposed to Section 3 hereof be sold by any Charter Investor or Softbank Investor holding such Registrable Securities the Company and (y) the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on to the basis of extent necessary to reduce the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such the registration to the level recommended by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determinemanaging underwriter.
Appears in 1 contract
Samples: Registration Rights Agreement (Rf Monolithics Inc /De/)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise the Company in writing that, in its view, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend to include in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by a Registration Request pursuant to Section 2 hereof, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) FIRST, the Registrable Securities requested to be included in such registration pursuant to Section 2 or Section 3 hereof by any Investor holding such Registrable Securities, allocated (if necessary) PRO RATA among such Investors on the basis of the relative number of Registrable Securities each such Holder has requested to be included in such registration;
(B) SECOND, securities of the Company to be sold for the account of the Company; and
(C) THIRD, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine;
(ii) If such registration was initiated by the Company (and not by the request of any Investor or other shareholder holding demand registration rights (a "Demand Investor"shareholder), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) firstFIRST, securities of the Company to be sold for the account of the Company;
(B) secondSECOND, (x) the Registrable Securities requested to be included in such registration pursuant to Section 2 or Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities and (y) the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand InvestorSecurities, allocated (if necessary) pro rata PRO RATA among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securitieseach such Holder has requested to be included in such registration; and
(C) thirdTHIRD, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(iiiii) If such registration was initiated by a Demand Investorperson other than the Company or any Investor pursuant to Section 2 or 3 hereof, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) firstFIRST, the securities requested to be registered by such Demand Investor;
(B) second, initiating person and the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata PRO RATA among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities shareholders on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securitiesshareholder has requested to be included in such registration;
(CB) thirdSECOND, securities of the Company to be sold for the account of the Company; and
(DC) fourthTHIRD, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine.
Appears in 1 contract
Priority in Incidental Registrations. Section 3(b) of the ------------------------------------ Agreement is hereby stricken and replaced in its entirety with the following: "If the managing underwriter of a registration pursuant to this Section 3 shall advise 3(a) involves an underwritten offering and the managing underwriter (or underwriters) advises the Company in writing that, in its viewopinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or mix distribution of securities (including all Registrable Securities) which such shares of Common Stock, then the Company, the Charter Investors, the Softbank Investors and any other persons intend to Company shall include in such registration exceeds only such maximum number of Registrable Securities which, in the Maximum Offering Size:
opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) If such registration was initiated by first, all of the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then shares of Common Stock that the Company will include in such registrationproposes to sell for its own account, in the priority listed below, securities up to the Maximum Offering Size:
if any; (A) first, securities of the Company to be sold for the account of the Company;
(Bii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities entitled to make a Demand Registration (xas hereinafter defined) held by the party requesting such Demand Registration and by Berkshire Hathaway Inc. and its Affiliates, provided -------- that such amount shall be allocated among such parties on a pro rata basis based upon their respective percentage of ownership of the total number of shares of Common Stock then outstanding; and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such registration Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holder(s) of Registrable Securities pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding clause (iii) above, such shares shall be allocated pro rata among the holder(s) of Registrable Securities and (ybased on the number of shares of Common Stock that such holder(s) the securities of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of Registrable Securities that are entitled to make a Demand Registration and Berkshire Hathaway Inc. and its Affiliates) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such registration by any holder of Parity Piggyback Incidental Registration Securities and by any Demand Investor, allocated (if necessary) on a basis other than a pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registrationif, in the priority listed belowreasonable opinion of such underwriter or underwriters, securities up selection on such other basis would be material to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis success of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineoffering."
Appears in 1 contract
Samples: Registration Rights Agreement (Remy International Inc)
Priority in Incidental Registrations. If the managing underwriter of (i) a registration pursuant to this Section 3 shall advise 2.2 involves an underwritten offering of the Company in writing thatsecurities so being registered, in its view, whether or not for sale for the number or mix account of securities (including all Registrable Securities) which the Company, to be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the Charter InvestorsRegistrable Securities so requested to be registered for sale for the account of Holders of Registrable Securities are also to be included in such underwritten offering, and (ii) the Softbank Investors managing underwriter of such underwritten offering shall inform the Company and any other persons intend the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to include be included in such registration exceeds the Maximum Offering Size:
number which can be sold in (ior during the time of) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor")offering, then the Company will may include in such registration, in the priority listed below, offering all securities up to the Maximum Offering Size:
(A) first, securities of proposed by the Company to be sold for its own account and may decrease the account number of Registrable Securities and other securities of the Company;
Company that persons have requested to be included in such registration by (Ba) secondfirst decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, to the extent necessary, decreasing the Registrable Securities requested to be registered (xpro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to the filing of the registration statement with respect to such registration); provided, however, that the rights of Holders hereunder shall be subject to (i) the right of the Series A Persons requesting inclusion of securities in such registration to include all of the securities requested to be registered by such Series A Persons in such registration without reduction prior to the inclusion of any Registrable Securities requested to be included in such registration pursuant to this Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities 2.2., and (yii) the rights of Series B Persons, Series C Persons, Series D Persons, Series E Persons, Series F Persons, Series G Persons, and Series E Warrant Purchasers requesting registration to include securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) on a pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included of Holders hereunder in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to same manner as described in Section 3 2.1(c) hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine.
Appears in 1 contract
Samples: Registration Rights Agreement (Bionumerik Pharmaceuticals Inc)
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise Article II involves an underwritten offering and the managing underwriter advises the Company in writing that, in its viewopinion, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend requested to include be included in such registration exceeds the Maximum Offering Size:
(i) If number which can be sold in such registration was initiated offering, so as to be likely to have an adverse effect on the price, timing or distribution of the securities offered in such offering as contemplated by the Company, and not by any Company (other shareholder holding demand registration rights (a "Demand Investor"than the Registrable Securities), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
registration (Ai) first, securities 100% of the securities the Company proposes to be sold for the account of the Company;
sell, (Bii) second, (x) to the extent of the number of Registrable Securities requested to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding Article III which, in the opinion of such managing underwriter, can be sold without having the adverse effect referred to above, the number of Registrable Securities and (y) which the securities Holders have requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investorregistration, such amount to be allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors all requesting Holders pursuant to Article III on the basis of the relative number of (I) shares of Registrable Securities then held by each such Holder (provided that any shares thereby allocated to any such Holder that exceed such Holder's request will be reallocated among the Charter Investors and the Softbank Investors, remaining requesting Holders in like manner) and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(Ciii) third, securities to the extent of the Company to be sold for the account number of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by pursuant to this Article II which, in the Charter Investorsopinion of such managing underwriter, can be sold without having the adverse effect referred to above, the Softbank Investors and number of Registrable Securities which the holders of Parity Piggyback Registration Securities pursuant Holders have requested to Section 3 hereofbe included in such registration, such amount to be allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities requesting Holders on the basis of the relative number of securities shares of the Company Registrable Securities then held by each such Charter Investor, Softbank Investor or holder Holder (provided that any shares thereby allocated to any such Holder that exceed such Holder's request will be reallocated among the remaining requesting Holders in like manner). The priority of Piggyback Registration Securities;
(C) third, securities registration of any shares being registered by the Company pursuant to the exercise of (a) "demand registration rights" granted following the date of this Agreement to holders of shares of Common Stock other than the Sponsor Stockholders or the Management Stockholders and Director Stockholders relative to other shares being registered pursuant to this Article II shall be sold for on the account basis provided in clause (ii) above and (b) "piggyback registration rights" granted following the date of this Agreement to holders of shares of Common Stock other than the Company; and
(D) fourth, securities of Sponsor Stockholders or the Company Management Stockholders and Director Stockholders relative to other shares being registered pursuant to this Article II shall be sold for the account of other persons, pro rata with such priorities among them as shares on the Company shall determinebasis provided in clause (iii) above.
Appears in 1 contract
Samples: Registration Rights Agreement (Westborn Service Center, Inc.)
Priority in Incidental Registrations. If the managing underwriter of for a registration pursuant to this Section 3 3.6 that involves an underwritten offering shall advise the Company Holdings in writing that, in its viewopinion, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend to include in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities of the Company to be sold for the account of the Company;
(B) second, (x) the Registrable Securities requested to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities and (y) the securities requested to be included in such registration exceeds the number (the "Section 3.6 Sale Number") that can be sold in an orderly manner in such offering within a price range acceptable to Holdings and Subsequent Grantees, Holdings shall include in such offering (i) first, all the securities proposed to be registered by the Subsequent Grantee (including the Principal Stockholder or any holder of Parity Piggyback Registration their Affiliates), (ii) second, to the extent that the Registrable Securities to be included by the Subsequent Grantees (including the Principal Stockholder or any of their Affiliates) are less than the Section 3.6 Sale Number, all Registrable Securities sought to be registered by Holdings, and (iii) third, to the extent that the sum of the Registrable Securities to be included by the Subsequent Grantees (including the Principal Stockholder or any of their Affiliates) and by Holdings are less than the Section 3.6 Sale Number, all Registrable Securities requested to be included by the Principal Stockholder, the Investcorp Stockholders, the Trustee and by any Demand Investorother Person or Persons upon whom registration rights have been conferred; PROVIDED, HOWEVER, that if the sum of the number of Registrable Securities to be registered pursuant to clause (iii) above after giving effect to clauses (i) and (ii) exceeds the Section 3.6 Sale Number, then the number of Registrable Securities requested by the Principal Stockholder, the Investcorp Stockholders, the Trustee and by any other Person or Persons upon whom registration rights have been conferred to be included in such registration shall be allocated (if necessary) pro rata among the Principal Stockholder, the Investcorp Stockholders, the Trustee and such Charter Investorsother Person or Persons, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) shares of such Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) firstPrincipal Stockholder, the securities requested to be registered by such Demand Investor;
(B) secondInvestcorp Stockholders, the Registrable Securities Trustee and each such Person has requested to be included in such registration by registration. If, as a result of the Charter Investorsproration provisions of this subsection 3.6(d), the Softbank Investors and Principal Stockholder, the holders of Parity Piggyback Registration Investcorp Stockholders, or the Trustee shall not be entitled to include all Registrable Securities in a registration pursuant to this Section 3 hereof3.6 that the Principal Stockholder, allocated (if necessary) pro rata among all of the Investcorp Stockholders, or the Trustee have requested be included, the Principal Stockholder, the Investcorp Stockholders, or the Trustee may make a Withdrawal Election; PROVIDED, HOWEVER, that such Charter InvestorsWithdrawal Election shall be irrevocable and, Softbank Investors and holders of Parity Piggyback Registration after making a Withdrawal Election, the Principal Stockholder, the Investcorp Stockholders or the Trustee shall no longer have any right to include Registrable Securities on in the basis of the relative number of securities of the Company held by each registration as to which such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determineWithdrawal Election was made.
Appears in 1 contract
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise 2(b) involves an underwritten offering and the Company managing underwriter advises Holdings in writing that, in its good faith view, the number or mix of equity securities (including all Registrable Securities) which that Holdings and the Company, the Charter Investors, the Softbank Investors and any other persons Shareholders intend to include in such registration exceeds the Maximum Offering Size:
(i) If largest number of securities that can be sold without having an adverse effect on such registration was initiated by offering, including the Companyprice at which such Registrable Securities can be sold, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company Holdings will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
registration (A) first, securities of all the Company Priority Securities to be sold for the account of the Company;
Holdings’ own account; and (B) second, (x) to the extent that the number of Priority Securities is less than the number of Registrable Securities requested to that the underwriter has advised Holdings can be included sold in such registration pursuant offering without having the adverse effect referred to Section 3 hereof by any Charter Investor or Softbank Investor holding such above, as many Registrable Securities and (y) the securities as are requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investorthe Shareholders pursuant to Section 2(b)(i), allocated (provided, however, that if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities Shareholders pursuant to Section 3 hereof2(b)(i), together with the number of Priority Securities, exceeds the number that Holdings has been advised can be sold in such offering without having the adverse effect referred to above, the number of such Registrable Securities requested to be included in such registration by the Shareholders pursuant to Section 2(b)(i) shall be allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities Shareholders requesting registration on the basis of the relative number of securities of Registrable Securities owned by them and Shareholders subject to such allocation may elect not to sell any Registrable Securities pursuant to the Company held by each such Charter Investorregistration statement; provided, Softbank Investor or holder of Piggyback Registration Securities;
(C) thirdfurther, securities of that the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other personsBoard may, with respect to any or all restrictions, alter, amend or modify the allocation provisions contained in this paragraph if, in good faith, such priorities among them as action would be likely to result in favorable tax treatment or to avoid unfavorable tax treatment of Holdings or the Company shall determineShareholders; provided, however, that such action is applied uniformly with respect to similarly situated Shareholders.
Appears in 1 contract
Samples: Shareholder Agreements (PMI Mortgage Insurance Co.)
Priority in Incidental Registrations. If a registration to which this Section 3 applies involves an underwritten offering and the managing underwriter of a registration pursuant to this Section 3 shall advise the Company advises Issuer in writing that, in its viewopinion, the number or mix of equity securities (including all Registrable Securities) which the CompanyIssuer, the Charter Investors, the Softbank Investors Holders and any other persons intend to include in such registration exceeds the largest number of shares (such amount, the "Maximum Offering Size:
(iShares" for purposes of this Section 3(b)) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities of the Company to which can be sold for without having an adverse effect on such offering, including the account price at which such equity securities can be sold, the number of the Company;
(B) second, (x) the Registrable Securities requested such equity securities to be included in such registration pursuant to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities shall be reduced, and (y) the securities requested to be included Issuer will include in such registration a maximum number of equity securities as follows: (A) first, such number of shares which Issuer proposes to sell for its own account in such registration; (B) second, to the extent the Maximum Shares exceeds the shares allocated to the first priority, such number of shares as are requested for inclusion therein by any holder the Holders of Parity Piggyback Registration Registrable Securities in accordance with the priorities and by any Demand Investorallocations set forth in Section 2(e)(i) (but using the Section 3 Maximum Shares amount) (provided, however, that, in the event that such registration is one in which one or more of the 1818 RRA Parties are also entitled to incidental registration rights, such excess shall be allocated (if necessary) pro rata among such Charter Investorsbetween the 1818 RRA Parties so entitled, Softbank Investorson the one hand, holders and the Holders of Parity Piggyback Registration Registrable Securities and Demand Investors hereunder, on the other hand, on the basis of the relative number of shares requested for (Iand so entitled to) inclusion in such registration, with the sub-allocation to and among the 1818 RRA Parties otherwise governed by the 1818 RRA and the sub-allocation to and among the Holders of Registrable Securities held by hereunder determined in accordance with the Charter Investors priorities and allocations set forth in Section 2(e)(i) (but using the Softbank Investors, Section 3 Maximum Shares amount)); and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the extent the Maximum Offering Size:
Shares exceed the shares allocated to the first and second priorities, such excess will be allocated in accordance with Section 2(e)(ii) (A) firstbut using the Section 3 Maximum Shares amount). It is understood and agreed that Holders under this Agreement will have no right to participate in any demand or shelf registration under the 1818 RRA, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities 1818 RRA Parties shall have no right to participate in any registration pursuant to Section 3 2 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine.
Appears in 1 contract
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise 2.2 involves an underwritten offering and the managing Underwriter advises the Company in writing that, in its viewopinion, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors Holders and any other persons intend Persons propose to include in such registration exceeds the Maximum Offering Size:
(i) If number which can be sold in such registration was initiated by offering without a reasonable likelihood of adversely affecting the Companyprice, and not by any other shareholder holding demand registration rights (a "Demand Investor")timing or distribution of the securities being offered, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
registration (Ai) first, all the securities of the Company initially proposes to be sold sell for its own account if the Company initiates such Incidental Registration or for the account of any security holder pursuant to any contractual requirement to register securities (unless such holder is exercising incidental registration rights subject to a proration provision similar to the Company;
provisions set forth in this Section 2.2(b) or demand registration rights subject to a proration provision similar to the provisions applicable to a Demanding Party as set forth in Section 2.1(c) hereof, in which case the provisions of the following clause (Bii) shall apply to the securities of such holder), (ii) second, to the extent that the number of securities referred to in clause (xi) is less than the Registrable Securities requested to number of securities which the Company has been advised can be included sold in such registration pursuant offering without having the adverse effect referred to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities and (y) the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investorabove, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the all Registrable Securities requested to be included in such registration by the Charter InvestorsHolders pursuant to Section 2.2(a) and all securities of the class then being registered ("Other Registrable Securities") requested to be included by any holder (each, the Softbank Investors and the holders an "Other Holder") of Parity Piggyback Registration Other Registrable Securities pursuant to any similar registration rights agreement, provided, that if the number of Registrable Securities and Other Registrable Securities so requested to be included in such registration, together with the number of securities to be included in such registration pursuant to clause (i) of this Section, exceeds the number which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the number of such Registrable Securities and Other Registrable Securities requested to be included in such registration by the Holders pursuant to Section 3 hereof, 2.2(a) and the Other Holders pursuant to any similar registration rights agreement shall be limited to such extent and shall be allocated (if necessary) pro rata among (A) all of Holders requesting such Charter Investors, Softbank Investors registration pursuant to Section 2.2(a) and holders of Parity Piggyback Registration Securities (B) all Other Holders requesting such registration pursuant to any similar registration rights agreement on the basis of the relative number of securities of requested to be included in such registration, and (iii) third, if the Company held by each does not initiate the Incidental Registration, to the extent the number of securities referred to in clauses (i) and (ii) is less than the number of securities which the Company has been advised can be sold in such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) thirdoffering without having the adverse effect referred to above, securities of the class then being registered the Company proposes to sell for its own account up to the number of such securities that, in the opinion of the managing Underwriter, can be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with without having such priorities among them as the Company shall determineadverse effect.
Appears in 1 contract
Priority in Incidental Registrations. If the managing underwriter of a registration pursuant to this Section 3 shall advise 4(b) involves an underwritten offering and the Company managing underwriter advises Montpelier in writing that, in its good faith view, the number or mix of equity securities (including all Registrable Securities) which that Montpelier and the Company, the Charter Investors, the Softbank Investors and any other persons Shareholders intend to include in such registration exceeds the Maximum Offering Size:
(i) If largest number of securities that can be sold without having an adverse effect on such registration was initiated by offering, including the Companyprice at which such Registrable Securities can be sold, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company Montpelier will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
registration (A) first, securities of all the Company Priority Securities to be sold for the account of the Company;
Montpelier's own account; and (B) second, (x) to the extent that the number of Priority Securities is less than the number of Registrable Securities requested to that the underwriter has advised Montpelier can be included sold in such registration pursuant offering without having the adverse effect referred to Section 3 hereof by any Charter Investor or Softbank Investor holding such Registrable Securities and (y) the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investorabove, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on the basis of the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such registration by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities Shareholders pursuant to Section 3 hereof4(b)(i), allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities Shareholders requesting registration on the basis of the relative number of Registrable Securities then held by them. Shareholders subject to such allocation may elect not to sell any Registrable Securities pursuant to the registration statement. The Board may alter, amend or modify the allocation provisions contained in this paragraph if it determines in good faith that such action would be likely to result in favorable tax treatment or to avoid unfavorable tax treatment of Montpelier or the Shareholders; provided, however, that such action is applied uniformly with respect to similarly situated Shareholders and that no distinction is made based on citizenship or jurisdiction of incorporation or organization. Notwithstanding any provision hereof to the contrary, Shareholders will have no rights under this Section 4(b) in respect of a public offering by Montpelier of its Common Shares (or any other securities or rights to acquire securities offered by Montpelier) made pursuant to a registration statement filed within one year of the Company held by each such Charter Investor, Softbank Investor or holder date of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determinethis Agreement.
Appears in 1 contract
Samples: Shareholders Agreement (Montpelier Re Holdings LTD)
Priority in Incidental Registrations. If the managing underwriter of (i) a registration pursuant to this Section 3 shall advise the Company in writing that, in its view, the number or mix of securities (including all Registrable Securities) which the Company, the Charter Investors, the Softbank Investors and any other persons intend to include in such registration exceeds the Maximum Offering Size:
(i) If such registration was initiated by the Company, and not by any other shareholder holding demand registration rights (a "Demand Investor"), then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, securities 2.2 involves an underwritten offering of the Company to be sold securities so being registered, whether or not for sale for the account of the Company;
, and (ii) the managing underwriter of such underwritten offering shall inform the Company and the holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to be included in such registration exceeds the number which can be sold in (or during the time of) such offering, then (A) in the case of an offering for the account of the Company, registration for the Registrable Securities shall be cut back such that (i) no holder of Registrable Securities shall be entitled to participate in such underwritten public offering unless all shares of Common Stock proposed to be sold by the Company for its own account have been included in such underwritten public offering, and (ii) after the Company has included its own shares of Common Stock, the holders of Registrable Securities and the holders of other securities as to which the Company has granted registration rights ("Other Registrable Securities"), including incidental registration rights, shall be entitled to include their Registrable Securities and Other Registrable Securities in an amount up to the amount that such managing underwriter or underwriters advise may be included therein (allocated among the holders of Registrable Securities and the holders of other Registrable Securities pro rata on the basis of the number of securities requested to be included therein by each such holder) and (B) secondin the case of an offering that was commenced as a result of the exercise of demand registration rights by Persons other than Stockholders, the Persons commencing such registration and the holders of Registrable Securities shall be entitled to include their Registrable Securities and Other Registrable securities in an amount up to the amount such managing underwriters or underwriters advise may be included therein (xallocated among the persons commencing such registration and the holders of Registrable Securities pro rate on the basis of the number of securities requested to be so included therein by each such person or holder). If, however, the registration was initiated by the Company within one hundred twenty (120) days of a requested registration and is in lieu thereof, then the Company shall include in the registration all Registrable Securities requested to be included in such registration pursuant and shall decrease the number of securities proposed to Section 3 hereof be sold by any Charter Investor or Softbank Investor holding such Registrable Securities the Company and (y) the securities requested to be included in such registration by any holder of Parity Piggyback Registration Securities and by any Demand Investor, allocated (if necessary) pro rata among such Charter Investors, Softbank Investors, holders of Parity Piggyback Registration Securities and Demand Investors on to the basis of extent necessary to reduce the relative number of (I) Registrable Securities held by the Charter Investors and the Softbank Investors, and (II) Parity Piggyback Registration Securities held by the holders of Parity Piggyback Registration Securities; and
(C) third, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determine. or
(ii) If such registration was initiated by a Demand Investor, then the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:
(A) first, the securities requested to be registered by such Demand Investor;
(B) second, the Registrable Securities requested to be included in such the registration to the level recommended by the Charter Investors, the Softbank Investors and the holders of Parity Piggyback Registration Securities pursuant to Section 3 hereof, allocated (if necessary) pro rata among all of such Charter Investors, Softbank Investors and holders of Parity Piggyback Registration Securities on the basis of the relative number of securities of the Company held by each such Charter Investor, Softbank Investor or holder of Piggyback Registration Securities;
(C) third, securities of the Company to be sold for the account of the Company; and
(D) fourth, securities of the Company to be sold for the account of other persons, with such priorities among them as the Company shall determinemanaging underwriter.
Appears in 1 contract
