Registration Limitations and Obligations. (a) Subject to Section 2, the Company will use reasonable efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; provided, that no such supplement, amendment or filing will be required during a Blackout Period. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders of Registrable Securities to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 3, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout Period if such holder or Beneficial Owner has specified in writing to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s address, contact and fax number information. No sales may be made under the applicable Registration Statement during any Blackout Period (with respect to clause (ii) of the definition thereof, of which the holders of Registrable Securities have or are deemed to have received notice). In the event of a Blackout Period under clause (ii) of the definition thereof, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial officer, general counsel or treasurer of the Company confirming that the conditions described in clause (ii) of the definition of Blackout Period are met, which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period described in clause (ii) of the definition thereof shall be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Registration Date shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (b) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities delivers a notice to the Company (a “Take-Down Notice”) stating that it, together with any other holder of Registrable Securities, intend to sell at least $75,000,000 in aggregate of Registrable Securities held by such holder and such other holders (provided that, if the holders of Registrable Securities and their Affiliates do not collectively own at least $75,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by them (but such amount may not in any case be less than $25,000,000 collectively of Registrable Securities), in each case, pursuant to the Registration Statement, then, the Company shall amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten Offering. In connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in first sentence above, and where the Take-Down Notice contemplates marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters, the Company will use reasonable efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located). The holder of Registrable Securities that delivered the applicable Take-Down Notice shall select the underwriter(s) for the Underwritten Offering; provided that the managing underwriter(s) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter) shall be reasonably acceptable to the Company. The Company shall select the counsel for the managing underwriter(s); provided that such counsel shall be reasonably acceptable to the underwriter(s) and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by such holder to the underwriters in such Underwritten Offering. Such holder shall reasonably determine the timing of any such registration and sale. Such holder shall determine the applicable underwriting discount and other financial terms, and such holder of the Registrable Securities sold in the Underwritten Offering shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten Offering. Without the consent of the applicable holder of Registrable Securities subject to an Underwritten Offering, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities. (c) Notwithstanding anything herein to the contrary, (i) if holders of Registrable Securities engage or propose to engage in a “distribution” (as defined in Regulation M under the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $75,000,000 of Registrable Securities held by such holders (provided that, if collectively the holders of Registrable Securities and their Affiliates do not own at least $75,000,000 of Registrable Securities, they shall be permitted to engage in such distribution with respect to all of the Registrable Securities held by them (for so long as they hold collectively at least $25,000,000 of Registrable Securities)). (d) In connection with a distribution of Registrable Securities in which the holders of Registrable Securities are selling an aggregate of at least $200,000,000 of Registrable Securities, the Company shall, to be extent requested by managing underwriter(s) of such a distribution, be subject to a restricted period of the same length of time as such holder agrees with the managing underwriter(s) (but not to exceed 90 days) during which the Company may not offer, sell or grant any option to purchase Company Common Stock (in the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock) and any debt securities (in the case of an offering of debt securities) of the Company, subject to customary carve-outs that include, but are not limited to, (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock plans and (ii) in connection with acquisitions, joint ventures and other strategic transactions (subject to, in the case of this clause (ii), a limit not to exceed 10% of the Company’s then outstanding Company Common Stock).

Appears in 4 contracts

Samples: Voting and Support Agreement (Splunk Inc), Merger Agreement (Splunk Inc), Voting and Support Agreement (Cisco Systems, Inc.)

Registration Limitations and Obligations. (a) Subject to Section 25.01, the Company will use reasonable efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; provided, that no such supplement, amendment or filing will be required during a Blackout Period. In order to facilitate the Company’s determination of whether to initiate a Blackout Period, the Purchaser shall give the Company notice of a proposed sale of Registrable Securities pursuant to the Registration Statement at least two (2) Business Days (or, if two Business Days is not practicable, one (1) Business Day) prior to the proposed date of sale (which notice shall not bind the Purchaser to make any sale). (b) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders of Registrable Securities to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 35.02, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout ~~Period~~ Period, or the certificate described in the following sentence, if such holder or Beneficial Owner has specified in writing (including electronic mail) to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s ~~address~~address (including electronic mail), contact and fax number information. No sales may be made under the applicable Registration Statement during any Blackout ~~Period (with respect to clause (ii) of the definition thereof, of which the holders of Registrable Securities have or are deemed to have received notice)~~Period. In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial ~~officer,~~ officer or general counsel ~~or treasurer~~ of the Company confirming that the conditions described in ~~clause (ii) of~~ the definition of Blackout Period are met (but which certificate need not specify the nature of the event causing such conditions to have been met), which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof~~ shall be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Target Registration Date shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (bc) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities (an “Initiating Holder”) delivers a notice to the Company (a “Take-Down Notice”) stating that ~~it, together with any other holder of Registrable Securities, intend~~ it intends to sell at least $~~75,000,000 in aggregate~~ 25,000,000 of Registrable Securities held by such holder ~~and such other holders~~ (provided that, if ~~the holders of Registrable Securities~~ a Purchaser and ~~their~~ its Affiliates do not ~~collectively~~ own at least $~~75,000,000~~ 25,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by ~~them (but such amount may not in any case be less than $25,000,000 collectively of Registrable Securities~~them), in each case, pursuant to the Registration Statement, then, the Company shall (i) amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten Offering (subject to Section 5.02(b)) and (ii) (x) within one (1) Business Day of receipt of the Take-Down Notice and confirmation of such receipt by the treasurer or chief financial officer of the Company and by counsel to the Company, deliver a written notice (a “Take-Down Participation Notice”) of any such request to all other holders of Registrable Securities (the “Eligible Participation Holders”), which Take-Down Participation Notice shall offer each such holder the opportunity to include in such registration that number of Registrable Securities of the same type (i.e., Notes or Company Common Stock) to be offered by the Initiating Holder as each such holder (a “Participating Holder”) may request. The Company shall include in such registration all such Registrable Securities with respect to which the Company has received from a holder entitled to receive a Take-Down Participation Notice pursuant to the preceding sentence written requests for inclusion therein within (i) in the case of an Underwritten Offering that is not a Marketed Underwritten Offering, one (1) Business Day after the date the Take-Down Participation Notice was delivered and confirmed received by the treasurer or chief financial officer of the Company and by counsel to the Company and (ii) in the case of a Marketed Underwritten Offering, three (3) Business Days after the date the Take-Down Participation Notice was delivered; provided, that each Selling Holder will retain the right to withdraw their Registrable Securities from such registration in writing to the underwriters prior to the pricing of the applicable offering. In connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in the first sentence ~~above,~~ of this Section 5.02(c) and ~~where~~ the Take-Down Notice contemplates ~~marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters~~a Marketed Underwritten Offering, the Company will use reasonable efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located). ~~The holder~~ A Majority in Interest of ~~Registrable Securities that delivered~~ Selling Holders shall have the ~~applicable Take-Down Notice shall~~ right hereunder to, in their sole discretion: (i) select the underwriter(s) for ~~the~~ each Underwritten Offering~~; provided that the managing underwriter(s~~, (ii) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter) shall be reasonably acceptable to the Company. The Company shall select the counsel for the managing underwriter(s); provided that such counsel shall be reasonably acceptable to the underwriter(s) and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by ~~such holder~~ the Selling Holders to the underwriters in such Underwritten Offering~~. Such holder shall reasonably~~ , as well as any other financial terms, (iii) determine the timing of any such registration and ~~sale. Such holder shall~~ sale and (iv) determine the ~~applicable underwriting discount and~~ total number of Registrable Securities that can be included in such Underwritten Offering in consultation with the managing underwriters (collectively, the “Offering Terms”); provided, that the Initiating Holder shall consult with each other ~~financial terms, and such holder~~ Participating Holder (other than any Participating Holder that is not a member of the ~~Registrable Securities sold~~ Silver Lake Group) in respect of the ~~Underwritten~~ Offering Terms. Each Selling Holder shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten ~~Offering~~Offering for the Registrable Securities sold by such Selling Holder. Without the consent of ~~the applicable holder~~ a Majority in Interest of ~~Registrable Securities subject to an Underwritten Offering~~Selling Holders, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities of the type (i.e., Notes or Company Common Stock) offered by the Initiating Holder in such Underwritten Offering. (d) If the managing underwriter or underwriters of any firm commitment Underwritten Offering advise the Selling Holders in writing that, in their view, the total amount of Registrable Securities proposed to be sold in such Underwritten Offering (including, without limitation, Registrable Securities proposed to be included by any Participating Holder) exceeds the largest amount (the “Orderly Sale Amount”) that can be sold in an orderly manner in such Underwritten Offering within a price range acceptable to the Majority in Interest of Selling Holders, then there shall be included in such firm commitment Underwritten Offering an amount of Registrable Securities not exceeding the Orderly Sale Amount, and such included amount of Registrable Securities shall be allocated pro rata among the Selling Holders on the basis of the number and type of Subject Securities then proposed to be sold by the respective Selling Holders (e.g., if Notes are being offered and sold, the pro rata amounts will be calculated based on the aggregate principal amount of Notes proposed to be sold without regard to shares of Company Common Stock Beneficially Owned by the respecting Selling Holders). (e) If requested by the managing underwriter of an Underwritten Offering for which a member of the Silver Lake Group is the Initiating Holder, unless such Initiating Holder otherwise agrees, no Eligible Participation Holder or Initiating Holder shall offer for sale (including by short sale), grant any option for the purchase of, or otherwise transfer (whether by actual disposition or effective economic disposition due to cash settlement, derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of the Registrable Securities or otherwise), any Notes or Company Common Stock (or interests therein) or securities convertible into or exchangeable for Notes or Company Common Stock without the prior written consent of such managing underwriter for a period designated by such managing underwriter in writing to the Eligible Participation Holders and the Initiating Holder, which shall begin the earlier of the date of the underwriting agreement and the commencement of marketing efforts, and shall not in any event last longer than sixty (60) days following such effective date. If requested by the managing underwriter of any such Underwritten Offering, each Eligible Participation Holder shall execute a separate agreement to the foregoing effect; provided, that each Eligible Participation Holder shall negotiate its respective lock-up agreement; provided, further, that if any such lock-up agreement (i) provides for exceptions from any restrictions contained therein, such exceptions shall automatically apply equally to each Selling Holder or (ii) is terminated or waived in whole or in part for any Selling Holder, such termination or waiver shall automatically apply to each other Selling Holder. Each lock-up agreement shall permit, and this Section 5.02(e) shall be deemed to permit, transfers pursuant to the terms of Permitted Loans, Permitted Debt Financing Transactions and other customary lock-up exceptions, including for gifts, distributions and other transfers not for value (and including in respect of customary charitable donations substantially contemporaneously with distribution to the donor, free of further lock-up agreement transfer restrictions by the donee, by a Selling Holder or its direct or indirect distributees). The obligations of any person under this Section 5.02(e) are not in limitation of lock-up or transfer restrictions that may otherwise apply to any Registrable Securities. (cf) In addition to the registration rights provided in Section 5.02(c), holders of the Notes shall have analogous rights to sell such securities in a marketed offering under Rule 144A under the Securities Act through one or more initial purchasers on a firm-commitment basis, using procedures that are substantially equivalent to those specified in Section 5.02 and Section 5.03. The Company agrees to use its reasonable efforts to cooperate to effect any such sales under such Rule 144A. Nothing in this Section 5.02(f) shall impose any additional or more burdensome obligations on the Company than would apply under Section 5.02 and Section 5.03, in each case, mutatis mutandis in respect of a registered Underwritten Offering, or require that the Company take any actions that it would not be required to take in an Underwritten Offering of such Notes. (g) Notwithstanding anything herein to the contrary, (i) if holders of Registrable Securities engage or propose to engage in a “distribution” (as defined in Regulation M under the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $~~75,000,000~~ 25,000,000 of Registrable Securities held by such holders (provided that, if collectively ~~the holders of Registrable Securities~~ Purchaser and ~~their~~ its Affiliates do not own at least $~~75,000,000~~ 25,000,000 of Registrable Securities, they shall be permitted to engage in such distribution with respect to all of the Registrable Securities held by ~~them (for so long as they hold collectively at least $25,000,000 of Registrable Securities)~~them). (dh) In connection with a distribution of Registrable Securities in which ~~the holders~~ a holder of Registrable Securities ~~are~~ is selling ~~an aggregate of~~ at least $~~200,000,000~~ 50,000,000 of Registrable Securities, the Company shall, to be extent requested by the managing underwriter(s) of such a distribution, be subject to a restricted period of the same length of time as such holder agrees with the managing underwriter(s) (but not to exceed 90 60 days) during which the Company may not offer, sell or grant any option to purchase Company Common Stock (in the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock) and any debt securities (in the case of an offering of debt securities) of the Company, subject to customary carve-outs that include, but are not limited to, (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock plans and (ii) in connection with acquisitions, joint ventures and other strategic ~~transactions (subject to, in the case of this clause (ii), a limit not to exceed 10% of the Company’s then outstanding Company Common Stock)~~transactions.

Appears in 3 contracts

Samples: Investment Agreement (Cornerstone OnDemand Inc), Investment Agreement (Cornerstone OnDemand Inc), Investment Agreement (Cornerstone OnDemand Inc)

Registration Limitations and Obligations. (a) Subject to Section 25.01, the Company will use reasonable best efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; ~~provided,~~ provided that no such supplement, amendment or filing will be required during a Blackout Period. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders of Registrable Securities to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 35.02, the Company shall ~~only be obligated to~~ not provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout Period if such holder or Beneficial Owner has specified in writing to the Company ~~for purposes of receiving~~ that it does not wish to receive such ~~notice such holder’s or Beneficial Owner’s address, contact and fax number information~~notices. No sales may be made under the applicable Registration Statement during any Blackout ~~Period (with respect to clause (ii) of the definition thereof, of which the holders of Registrable Securities have or are deemed to have received notice)~~Period. In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial officer, general counsel or treasurer of the Company confirming that the conditions described in ~~clause (ii) of~~ the definition of Blackout Period are met, which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof shall~~ will be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Registration Date shall be considered a Blackout Period ~~described in clause (ii) of the definition thereof~~ and subject to the limitations ~~therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period~~ described in ~~clause (i) of~~ the definition ~~thereof. For avoidance~~ of ~~doubt, upon expiration of a~~ Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations thereinPeriod. (b) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities delivers a notice to the Company (a “Take-Down Notice”) stating that it, together with any other ~~holder of Registrable Securities~~Persons, intend to sell at least $~~75,000,000~~ 5,000,000 in aggregate of Registrable Securities held by such holder and such other ~~holders (~~Persons; provided that, if the ~~holders of Registrable Securities~~ Purchasers and their Affiliates do not collectively own at least $~~75,000,000~~ 5,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by them (but such amount may not in any case be less than $~~25,000,000~~ 5,000,000 collectively of Registrable Securities), in each case, pursuant to the Registration Statement, then, the Company shall amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten Offering. In connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in first sentence above, and where the Take-Down Notice contemplates marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters, the Company will use reasonable best efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located). The holder of Registrable Securities that delivered the applicable Take-Down Notice shall select the underwriter(s) for ~~the~~ each Underwritten Offering; provided that the managing underwriter(s) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter) of a marketed Underwritten Offering shall be reasonably acceptable to the Company. The Company shall select the counsel for the managing underwriter(s); provided that such counsel shall be reasonably acceptable to the underwriter(s) and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by such holder to the underwriters in such Underwritten Offering. Such holder shall reasonably determine the timing of any such registration and sale. Such holder shall determine the applicable underwriting discount and other financial terms, and ~~such holder~~ the holders of the Registrable Securities sold in the Underwritten Offering shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten Offering. Without the consent of the ~~applicable~~ holder of Registrable Securities ~~subject to an Underwritten Offering~~that delivered the applicable Take-Down Notice, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities. (c) ~~Notwithstanding anything herein~~ Subject to Section 5.02(d), if the ~~contrary~~Company proposes to file a Registration Statement for equity securities or securities convertible into equity securities, whether on its own behalf or in connection with the exercise of any registration rights by any holder of registrable securities (other than (i) if a registration relating solely to an employee benefit plan or employee stock plan, a dividend reinvestment plan, or a merger or a consolidation, (ii) a registration on Form S-4 or any successor form, (iii) a registration on Form S-8 or any successor form, (iv) any amendments or supplements to the Registration Statement on Form S-1 (No. 333-262472), previously filed by the Company with the SEC and most recently declared effective on March 30, 2023 or (v) any amendments or supplements to the Registration Statement on Form S-1 (No. 333-264598), previously filed by the Company with the SEC and most recently declared effective on March 30, 2023), then the Company shall give prompt notice (the “Initial Notice”), no later than the date that is twenty (20) days prior to the intended filing date of such Registration Statement, to the holders of Registrable Securities, and the holders of Registrable Securities ~~engage or propose~~ shall be entitled to ~~engage~~ include in ~~a “distribution” (as defined in Regulation M under~~ such Registration Statement the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $75,000,000 of Registrable Securities held by them. The Initial Notice shall offer the holder of Registrable Securities the right, subject to Section 5.02(d) (the “Piggyback Registration Rights”), to register such number of shares of Registrable Securities as each such holders may request and shall set forth (~~provided that~~A) the anticipated filing date of such Registration Statement and (B) the aggregate number of Registrable Securities that is proposed to be included in such Registration Statement. Subject to Section 5.02(d), ~~if collectively~~ the Company shall include in such Registration Statement such Registrable Securities for which it has received written requests to register within ten (10) days after the Initial Notice has been given. (d) If a registration pursuant to Section 5.02(b) or Section 5.02(c) involves an Underwritten Offering and the managing underwriter(s) of such proposed Underwritten Offering advises the Company or the holders of Registrable Securities that the total securities that the holders of Registrable Securities and ~~their Affiliates do not own at least $75,000,000 of Registrable Securities, they shall be permitted~~ any other Persons intend to ~~engage~~ include in such ~~distribution with respect to all~~ offering, or that the inclusion of certain holders of the Registrable Securities in such offering, would be reasonably likely to adversely affect the price, timing or distribution of the securities offered in such offering, then the number of securities proposed to be included in such registration shall be allocated among the Company, the holders of Registrable Securities and the holders of other registrable securities in such offering, such that the number of securities that each such Person shall be entitled to sell in the Underwritten Offering shall be included in the following order: (i) in the case of an exercise of any registration rights by holders of Registrable Securities pursuant to Section 5.02(b): (i) first, the securities held by ~~them~~ the Person(s) exercising such registration rights pursuant to Section 5.02(b), pro rata based upon the number of Registrable Securities requested to be registered by each such Person in connection with such registration; (~~for so long as they hold collectively at least $25,000,000~~ ii) second, the securities held by other Person(s), if any, validly exercising demand registration rights, pro rata based upon the number of Registrable Securities requested to be registered by each such Person in connection with such registration; and (iii) third, securities to be issued and sold by the Company in such registration; (ii) In the case of an exercise of registration rights by Persons other than the holders of Registrable Securities: (i) first, the securities held by such other Person(s)), pro rata based upon the number of registrable securities requested to be registered by each such Person in connection with such registration; (ii) second, the securities held by holders of Registrable Securities exercising their Piggyback Registration Rights, pro rata based upon the number of Registrable Securities requested to be registered by each such Person in connection with such registration; and (iii) third, securities to be issued and sold by the Company in such registration; and (iii) in the case of any other registration: (i) first, the securities to be issued and sold by the Company in such registration; and (ii) second, the securities held by holders of Registrable Securities exercising their Piggyback Registration Rights and any other holders of registrable securities validly exercising their piggyback registration rights, pro rata based upon the number of securities requested to be registered by each such Person in connection with such registration. (de) In connection with a distribution of Registrable Securities in which the holders of Registrable Securities are selling an aggregate of at least $~~200,000,000~~ 5,000,000 of Registrable Securities, the Company shall, to be the extent requested by managing underwriter(s) of such a distribution, be subject to a restricted period of the same length of time as such holder agrees with the managing underwriter(s) (but not to exceed 90 days) during which the Company may not offer, sell or grant any option to purchase Company Common Stock ~~(in the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock)~~ and any debt securities ~~(in the case of an offering of debt securities)~~ of the ~~Company, subject to customary carve-outs that include, but are not limited to, (i)~~ Company other than issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock plans and (ii) in connection with acquisitions, joint ventures and other strategic transactions (subject to, in the case of this clause (ii), a limit not to exceed 10% of the Company’s then outstanding Company Common Stock)plans.

Appears in 2 contracts

Samples: Investment Agreement (Inspirato Inc), Investment Agreement (Inspirato Inc)

Appears in 2 contracts

Samples: Investment Agreement (Nu Skin Enterprises Inc), Investment Agreement (Nu Skin Enterprises Inc)

Appears in 2 contracts

Samples: Investment Agreement, Investment Agreement (Symantec Corp)

Registration Limitations and Obligations. (a) Subject to Section 26.01, the Company will use commercially reasonable efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; provided, that no such supplement, amendment or filing will be required during a Blackout Period. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders ~~of Registrable Securities~~ to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 36.02, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout Period if such holder or Beneficial Owner has specified in writing to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s ~~address,~~ address and contact ~~and fax number~~ information. No sales may be made under the applicable Registration Statement during any Blackout Period ~~(with respect to clause (ii) of the definition thereof,~~ of which the holders of Registrable Securities have ~~or are deemed to have~~ received notice). In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial officer, general counsel or treasurer of the Company confirming that the conditions described in clause (ii) of the definition of Blackout Period are met, which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof~~ shall be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the date the initial Registration ~~Date~~ Statement has been declared effective shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (b) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities delivers a notice to the Company (a “Take-Down Notice”) stating that it, together with any other ~~holder of Registrable Securities~~Persons, intend to sell at least $~~75,000,000~~ 25,000,000 in aggregate of Registrable Securities held by such holder and such other holders (provided that, if the holders of Registrable Securities and their Affiliates do not collectively own at least $75,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by them (but such amount may not in any case be less than $25,000,000 collectively of Registrable Securities)Persons, in each case, pursuant to the Registration Statement, then, no more than two times in any 12-month period, the Company shall amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten Offering. In connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in first sentence above, and where the Take-Down Notice contemplates marketing efforts ~~not to exceed twenty-four (24) hours~~ by the Company and the underwriters, the Company will use reasonable efforts to cooperate and make its senior officers available for participation in such marketing ~~efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located)~~efforts. The holder of the Registrable Securities that delivered the applicable Take-Down Notice shall select the ~~underwriter(s~~underwriters (including the managing underwriters) for ~~the~~ each Underwritten Offering; provided that the ~~managing underwriter(s) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter)~~ underwriters shall be reasonably acceptable to the Company. The Company shall select the counsel for the ~~managing underwriter(s)~~underwriters; provided that such counsel shall be reasonably acceptable to the ~~underwriter(s)~~ managing underwriters and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by such holder to the underwriters in such Underwritten Offering. Such holder shall reasonably determine the timing of any such registration and sale. Such holder shall determine the applicable underwriting discount and other financial terms, and such holder of the Registrable Securities sold in the Underwritten Offering shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten Offering. Without the consent of the ~~applicable holder~~ holders of a majority of Registrable Securities subject to an Underwritten Offering, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities. (c) If the managing underwriter or underwriters of any firm commitment Underwritten Offering advise the Selling Holders in such offering in writing that, in their view, the total amount of Registrable Securities proposed to be sold in such Underwritten Offering exceeds the largest amount (the “Orderly Sale Amount”) that can be sold in an orderly manner in such Underwritten Offering within a price range acceptable to the majority in interest of Selling Holders, then there shall be included in such firm commitment Underwritten Offering an amount of Registrable Securities not exceeding the Orderly Sale Amount, and such included amount of Registrable Securities shall be allocated pro rata among the Selling Holders with respect to such Underwritten Offering on the basis of the number of Registrable Securities beneficially owned by each such Selling Holder. (d) If the managing underwriters have not limited the Registrable Securities to be included in the Underwritten Offering, the Company may include securities for its own account or for the account of others in such registration if the managing underwriters so agree and if the number of Registrable Securities which would otherwise have been included in such Underwritten Offering will not be limited thereby. (e) Notwithstanding anything herein to the contrary, (i) if holders of Registrable Securities engage or propose to engage in a “distribution” (as defined in Regulation M under the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $~~75,000,000~~ 25,000,000 of Registrable Securities held by such holders (provided that, if collectively ~~the holders of Registrable Securities~~ a Purchaser and ~~their~~ its Affiliates do not own at least $~~75,000,000~~ 25,000,000 of Registrable Securities, they shall be permitted to engage in such distribution with respect to all of the Registrable Securities held by ~~them (for so long as they hold collectively at least $25,000,000 of Registrable Securities)~~them). (df) In connection with ~~a distribution of Registrable Securities in which the holders of Registrable Securities are selling~~ an ~~aggregate of at least $200,000,000 of Registrable Securities~~Underwritten Offering, the Company and its directors and officers shall, to be the extent requested by managing ~~underwriter(s)~~ underwriters of such a distribution, be subject to a customary lockup agreement with a restricted period of the same length of time as such holder agrees with the managing ~~underwriter(s)~~ underwriters (but not to exceed 90 days) during which the Company may not ~~offer~~issue or transfer, ~~sell~~ and its officers and directors may not transfer, ADSs or ~~grant~~ Company Ordinary Shares or any ~~option to purchase~~ securities exchangeable or exercisable for, or convertible into, ADSs or Company Common Stock (in the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock) and any debt securities (in the case of an offering of debt securities) of the CompanyOrdinary Shares, subject to customary carve-outs ~~that~~ agreed with the managing underwriters, which may include, but are not limited to, : (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock ~~plans and~~ plans, (ii) sales in connection with the settlement of equity awards to cover tax withholding obligations, (iii) sales under trading plans pursuant to Rule 10b5-1, and (iv) issuances in connection with acquisitions, joint ventures and other strategic transactions (~~subject to~~which, in the case of this clause (iiiv), ~~a limit~~ would not exceed up to ~~exceed~~ 10% of the ~~Company’s then~~ outstanding Company ~~Common Stock~~Ordinary Shares at the time of such Underwritten Offering). (g) If the Company files a Registration Statement with respect to an offering of ADSs on behalf of the Company or on behalf of one or more shareholders of the Company, or otherwise seeks to commence an offering of ADSs on behalf of the Company or one or more shareholders of the Company, then the Company shall be required to give advance notice of the filing of the Registration Statement or the offering to the Purchasers at least five business days before the filing of the Registration Statement or the commencement of the offering. Upon receipt of the Company notice, each of the Purchasers shall have five business days to inform the Company whether or not they want to include their Registrable Securities in the proposed offering. The Company shall include in the offering any Registrable Securities which a Purchaser has requested to be included in such offering. If the managing underwriter of the offering advises the Company that the number of ADSs proposed to be sold exceeds the Orderly Sale Amount, then the Company shall include in the offering such lower number of ADSs that equals the Orderly Sale Amount, with the Company having first priority, the other shareholders having second priority, and the piggybacking Purchasers having third priority with respect to inclusion of their ADSs in the offering.

Appears in 2 contracts

Samples: Subscription Agreement (Oatly Group AB), Subscription Agreement (Oatly Group AB)

Appears in 2 contracts

Samples: Purchase Agreement (2U, Inc.), Purchase Agreement (2U, Inc.)

Appears in 1 contract

Samples: Investment Agreement (Nutanix, Inc.)

Registration Limitations and Obligations. (a) Subject to ~~Section 2~~‎Section 5.01, the Company will use reasonable efforts to prepare such supplements or amendments (including a post-effective ~~amendment~~amendments), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; ~~provided,~~ provided that no such supplement, amendment or filing will be required during a Blackout Period. In order to facilitate the Company’s determination of whether to initiate a Blackout Period, the Purchaser shall give the Company notice of a proposed sale of Registrable Securities pursuant to the Registration Statement at least two (2) Business Days (or, if two (2) Business Days’ notice is not practicable, one (1) Business Day) prior to the proposed date of sale (which notice shall not bind the Purchaser to make any sale). (b) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders of Registrable Securities to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this ~~Section 3~~‎Section 5.02, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout ~~Period~~ Period, or the certificate described in the following sentence, if such holder or Beneficial Owner has specified in writing to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s ~~address,~~ address and contact ~~and fax number~~ information. No sales may be made under the applicable Registration Statement during any Blackout ~~Period (with respect to clause (ii) of the definition thereof, of which the holders of Registrable Securities have or are deemed to have received notice)~~Period. In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive ~~officer,~~ officer or chief financial ~~officer, general counsel or treasurer~~ officer of the Company confirming that the conditions described in ~~clause (ii) of~~ the definition of Blackout Period are ~~met~~met (but which certificate shall not specify the nature of the event causing such conditions to have been met or otherwise contain any material non-public information), which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective ~~amendment~~amendments, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof~~ shall be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Target Registration Date shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (bc) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities delivers a notice to the Company (a “Take-Down Notice”) stating that ~~it, together with any other holder of Registrable Securities, intend~~ it intends to sell at least $~~75,000,000 in aggregate~~ 37,500,000 of Registrable Securities held by such holder ~~and such other holders~~ (provided that, if the ~~holders of Registrable Securities~~ Purchaser and ~~their~~ its Affiliates do not ~~collectively~~ own at least $~~75,000,000~~ 37,500,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by them pursuant to the Registration Statement (but such amount may not in any case be less than $~~25,000,000 collectively~~ 12,500,000 of Registrable Securities)~~, in each case, pursuant to the Registration Statement,~~ ) then, the Company shall amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten ~~Offering~~Offering (subject to ‎Section 5.02(b)). In connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in first sentence above, and where the Take-Down Notice contemplates reasonable and customary marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters, the Company will use reasonable efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located). The holder of Registrable Securities that delivered the applicable Take-Down Notice shall select the underwriter(s) for ~~the~~ each Underwritten Offering; provided that the managing underwriter(s) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter) shall be reasonably acceptable to the Company. The Company shall select the counsel for the managing underwriter(s); provided that such counsel shall be reasonably acceptable to the underwriter(s) and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by such holder to the underwriters in such Underwritten Offering. Such holder shall reasonably determine the timing of any such registration and sale. Such holder shall determine the applicable underwriting discount and other financial terms, and ~~such~~ the holder of the Registrable Securities ~~sold~~ participating in the Underwritten Offering shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten ~~Offering~~Offering for the Registrable Securities sold by such holders. Without the consent of the applicable holder of Registrable Securities subject to an Underwritten Offering, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities. (cd) Notwithstanding anything herein to the contrary, (i) if holders of Registrable Securities engage or propose to engage in a “distribution” (as defined in Regulation M under the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $~~75,000,000~~ 37,500,000 of Registrable Securities held by such holders (provided that, if collectively the ~~holders of Registrable Securities~~ Purchaser and ~~their~~ its Affiliates do not own at least $~~75,000,000~~ 37,500,000 of Registrable Securities, they shall be permitted to engage in such distribution with respect to all of the Registrable Securities held by them (for so long as they hold collectively at least $~~25,000,000~~ 12,500,000 of Registrable Securities)). (de) In connection with a distribution of Registrable Securities in which ~~the holders~~ a holder of Registrable Securities ~~are~~ is selling ~~an aggregate of~~ at least $~~200,000,000~~ 75,000,000 of Registrable Securities, the Company shall, to be the extent requested by managing underwriter(s) of such a distribution, be subject to a restricted period of the same length of time as such holder agrees with the managing underwriter(s) (but not to exceed 90 30 days) during which the Company may not offer, ~~sell or~~ sell, grant any option to purchase or enter into any agreement to sell Company Common Stock (in the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock) and any debt securities (in the case of an offering of debt securities) of the Company, subject to customary carve-outs that include, but are not limited to, (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock plans and (ii) in connection with acquisitions, joint ventures and other strategic transactions ~~(subject to, in~~ so long as the ~~case~~ amount of Company Common Stock issuable under this clause (ii~~), a limit~~ ) does not to exceed 10% of the ~~Company’s then outstanding~~ shares of Company Common ~~Stock)~~Stock then outstanding.

Appears in 1 contract

Samples: Investment Agreement (ExlService Holdings, Inc.)

Appears in 1 contract

Samples: Investment Agreement (Virtusa Corp)

Registration Limitations and Obligations. (a) Subject to Section 25.01, the Company will use reasonable efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; provided, that no such supplement, amendment or filing will be required during a Blackout Period. In order to facilitate the Company’s determination of whether to initiate a Blackout Period, the Purchaser shall give the Company notice of a proposed sale of Registrable Securities pursuant to the Registration Statement at least two (2) Business Days (or, if two Business Days is not reasonably practicable, one (1) Business Day) prior to the proposed date of sale (which notice shall not bind the Purchaser to make any sale). (b) If a Person entitled to the benefits of this Agreement becomes a holder of Registrable Securities after a Registration Statement becomes effective under the Securities Act, the Company shall, as promptly as is reasonably practicable following delivery of written notice to the Company of such Person becoming a holder of Registrable Securities and requesting for its name to be included as a selling securityholder in the prospectus related to the Registration Statement: (i) if required and permitted by applicable law, file with the SEC a supplement to the related prospectus or a post-effective amendment to the Registration Statement so that such holder of Registrable Securities is named as a selling securityholder in the Registration Statement and the related prospectus in such a manner as to permit such holder of Registrable Securities to deliver a prospectus to purchasers of the Registrable Securities in accordance with applicable 4840-5838-5626.18 law; provided, however, that the Company shall not be required to file more than one post-effective amendment or a supplement to the related prospectus for such purpose in any 90-day period; (ii) if, pursuant to Section 5.02(b)(i), the Company shall have filed a post-effective amendment to the Registration Statement that is not automatically effective, use its commercially reasonable efforts to cause such post-effective amendment to become effective under the Securities Act as promptly as is reasonably practicable; and (iii) notify such holder of Registrable Securities as promptly as is reasonably practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section 5.02(b)(i). (c) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders of Registrable Securities to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 3, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout Period if such holder or Beneficial Owner has specified in writing to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s address, contact and fax number information. No sales may be made under the applicable Registration Statement during any Blackout Period (~~with respect to clause (ii) of the definition thereof,~~ of which the holders of Registrable Securities have or are deemed to have received notice). In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial ~~officer,~~ officer or general counsel ~~or treasurer~~ of the Company confirming that the conditions described in ~~clause (ii) of~~ the definition of Blackout Period are met (but which certificate need not specify the nature of the event causing such conditions to have been met), which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof~~ shall be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Registration Date shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (bd) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities (an “Initiating Holder”) delivers a notice to the Company (a “Take-Down Notice”) stating that ~~it, together with any other holder of Registrable Securities, intend~~ it intends to sell at least $75,000,000 ~~in aggregate~~ of Registrable Securities held by such holder ~~and such other holders~~ (provided that, if the ~~holders of Registrable Securities~~ Purchaser and ~~their~~ its Affiliates do not ~~collectively~~ own at least $75,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of ~~the~~ their remaining Registrable Securities then held by them ~~(but such amount may not~~ in ~~any case be less than $25,000,000 collectively of Registrable Securities~~a single distribution), in each case, pursuant to the Registration Statement, then, the Company shall amend or supplement the Registration Statement as may be necessary and to 4840-5838-5626.18 the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten ~~Offering~~Offering or in such other manner as requested by the Purchaser; provided, that the Initiating Holders may not deliver more than one (1) Take-Down Notice to the Company in any consecutive 90-day period; provided further, that the Initiating Holders may not deliver more than two (2) Take-Down Notices in any twelve (12) month period. In connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in the first sentence ~~above,~~ above and ~~where~~ the Take-Down Notice contemplates ~~marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters~~a Marketed Underwritten Offering, the Company will use commercially reasonable efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts ~~will not~~will, for the avoidance of doubt, include a “road ~~show~~shows” ~~requiring~~ or similar marketing efforts) to the extent reasonably necessary to support the proposed sale of Registrable Securities pursuant to such Marketed Underwritten Offering (it being understood that the Company and its officers shall not be obligated to ~~travel outside of the city~~ participate in ~~which they are primarily located~~any in-person road show presentations). The ~~holder of Registrable Securities that delivered~~ Company shall have the ~~applicable Take-Down Notice shall~~ right hereunder to select the underwriter(s) for ~~the~~ each Underwritten Offering~~; provided that the managing~~ , which underwriter(s~~) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter~~) shall be reasonably acceptable to the ~~Company~~Initiating Holders. The ~~Company~~ Initiating Holders shall ~~select~~ have the ~~counsel for the managing underwriter(s); provided that such counsel shall be reasonably acceptable to the underwriter(s~~right hereunder to: (i) ~~and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall~~ determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable ~~by such holder~~ to the underwriters in such Underwritten Offering~~. Such holder shall reasonably~~ , as well as any other financial terms, (ii) determine the timing of any such registration and sale~~. Such holder shall~~ , such timing to be reasonably acceptable to the Company, and (iii) determine the ~~applicable underwriting discount and other financial terms, and such holder~~ total number of ~~the~~ Registrable Securities ~~sold~~ that can be included in ~~the~~ such Underwritten Offering ~~shall~~ in consultation with the managing underwriters. Each Initiating Holder further agrees to execute such agreements as may be ~~solely responsible~~ reasonably requested by the underwriter(s) in connection with any Underwritten Offering of Registrable Securities for ~~all such discounts and fees payable~~ which the Initiating Holder delivers a Take-Down Notice that are consistent with this Section 5.02(d) or that are necessary to ~~such underwriters in~~ give further effect to such Underwritten Offering. Without the consent of the applicable holder of Registrable Securities subject to an Underwritten Offering, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities. (ce) In addition to the registration rights provided in Section 5.01 and the indemnification provisions in Section 5.05, holders of Registrable Securities shall have analogous rights to indemnification and to sell such securities in a marketed offering under Rule 144A under the Securities Act through one or more initial purchasers, using procedures that are substantially equivalent to those specified in Section 5.02, Section 5.03 and Section 5.05, as applicable. The Company agrees to use its reasonable efforts to cooperate to effect any such sales under such Rule 144A. Nothing in this Section 5.02(e) shall impose any additional or more burdensome obligations on the Company than would apply under Section 5.02 and Section 5.03, in each case, mutatis mutandis in respect of a registered Underwritten Offering, or require that the Company take any actions that it would not be required to take in an Underwritten Offering. (f) Notwithstanding anything herein to the contrary, (i) if holders of Registrable Securities engage or propose to engage in a “distribution” (as defined in Regulation M under the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such 4840-5838-5626.18 distribution must not be for less than $75,000,000 of Registrable Securities held by such holders (provided that, if collectively the ~~holders of Registrable Securities~~ Purchaser and ~~their~~ its Affiliates do not own at least $75,000,000 of Registrable Securities, they shall be permitted to engage in such distribution with respect to all of the Registrable Securities held by them (for so long as they hold collectively at least $25,000,000 of Registrable Securities)). (dg) In connection with a distribution of Registrable Securities in which ~~the holders~~ a holder of Registrable Securities ~~are~~ is selling ~~an aggregate of~~ at least $~~200,000,000~~ 75,000,000 of Registrable ~~Securities~~Securities including pursuant to Rule 144A, the Company ~~shall~~shall and shall use its reasonable best efforts to cause each of its officers and directors to, to be the extent requested by Purchaser, the managing underwriter(s) or initial purchasers, as applicable, of such a distribution, be subject to a restricted period of the same length of time as such holder agrees with the managing underwriter(s) (but not to exceed 90 60 days) during which the Company and its officers and directors may not offer, sell or grant any option to purchase Company Common Stock (in the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock~~) and any debt securities (in the case of an offering of debt securities) of the Company~~), subject to customary carve-outs that include, but are not limited to, (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock plans and (ii) in connection with acquisitions, joint ventures and other strategic ~~transactions (subject to, in the case of this clause (ii), a limit not to exceed 10% of the Company’s then outstanding Company Common Stock)~~transactions.

Appears in 1 contract

Samples: Investment Agreement (eHealth, Inc.)

Appears in 1 contract

Samples: Investment Agreement (Splunk Inc)

Appears in 1 contract

Samples: Investment Agreement (Twitter, Inc.)

Registration Limitations and Obligations. ~~(a)~~ Subject to Section 25.01, the Company will use commercially reasonable efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; provided, that no such supplement, amendment or filing will be required during a Blackout Period. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the ~~holders~~ holder of Registrable Securities, to require ~~such holders of Registrable Securities~~ the holder to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 35.02, the Company shall only be obligated to provide written notice to ~~any~~ the holder or Beneficial Owner of Registrable Securities of any such Blackout Period if such holder or Beneficial Owner has specified in writing to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s ~~address,~~ address and contact ~~and fax number~~ information. No sales may be made under the applicable Registration Statement during any Blackout Period ~~(with respect to clause (ii) of the definition thereof,~~ of which the ~~holders~~ holder of Registrable Securities ~~have or are deemed to have~~ has received notice). In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial officer, general counsel or treasurer of the Company confirming that the conditions described in clause (ii) of the definition of Blackout Period are met, which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a the holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof~~ shall be deemed to have expired when the Company has notified the ~~holders~~ holder of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the date the initial Registration ~~Date~~ Statement has been declared effective shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (b) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities delivers a notice to the Company (a “Take-Down Notice”) stating that it, together with any other holder of Registrable Securities, intend to sell at least $75,000,000 in aggregate of Registrable Securities held by such holder and such other holders (provided that, if the holders of Registrable Securities and their Affiliates do not collectively own at least $75,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by them (but such amount may not in any case be less than $25,000,000 collectively of Registrable Securities), in each case, pursuant to the Registration Statement, then, the Company shall amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten Offering. In connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in first sentence above, and where the Take-Down Notice contemplates marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters, the Company will use reasonable efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located). The holder of Registrable Securities that delivered the applicable Take-Down Notice shall select the underwriter(s) for the Underwritten Offering; provided that the managing underwriter(s) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter) shall be reasonably acceptable to the Company. The Company shall select the counsel for the managing underwriter(s); provided that such counsel shall be reasonably acceptable to the underwriter(s) and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by such holder to the underwriters in such Underwritten Offering. Such holder shall reasonably determine the timing of any such registration and sale. Such holder shall determine the applicable underwriting discount and other financial terms, and such holder of the Registrable Securities sold in the Underwritten Offering shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten Offering. Without the consent of the applicable holder of Registrable Securities subject to an Underwritten Offering, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities. (c) Notwithstanding anything herein to the contrary, (i) if holders of Registrable Securities engage or propose to engage in a “distribution” (as defined in Regulation M under the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $75,000,000 of Registrable Securities held by such holders (provided that, if collectively the holders of Registrable Securities and their Affiliates do not own at least $75,000,000 of Registrable Securities, they shall be permitted to engage in such distribution with respect to all of the Registrable Securities held by them (for so long as they hold collectively at least $25,000,000 of Registrable Securities)). (d) In connection with a distribution of Registrable Securities in which the holders of Registrable Securities are selling an aggregate of at least $200,000,000 of Registrable Securities, the Company shall, to be extent requested by managing underwriter(s) of such a distribution, be subject to a restricted period of the same length of time as such holder agrees with the managing underwriter(s) (but not to exceed 90 days) during which the Company may not offer, sell or grant any option to purchase Company Common Stock (in the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock) and any debt securities (in the case of an offering of debt securities) of the Company, subject to customary carve-outs that include, but are not limited to, (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock plans and (ii) in connection with acquisitions, joint ventures and other strategic transactions (subject to, in the case of this clause (ii), a limit not to exceed 10% of the Company’s then outstanding Company Common Stock).

Appears in 1 contract

Samples: Investment Agreement (Oatly Group AB)

Appears in 1 contract

Samples: Investment Agreement (ChargePoint Holdings, Inc.)

Appears in 1 contract

Samples: Investment Agreement (Global Payments Inc)

Registration Limitations and Obligations. (a) Subject to Section 25.01, the Company will use reasonable efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; provided, that no such supplement, amendment or filing will be required during a Blackout Period. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the ~~holders~~ Holders of Registrable Securities, to require such ~~holders~~ Holders of Registrable Securities to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 35.02, the Company shall only be obligated to provide written notice to any ~~holder~~ Holder or Beneficial Owner of Registrable Securities of any such Blackout Period if such ~~holder~~ Holder or Beneficial Owner has specified in writing (including electronic mail) to the Company for purposes of receiving such notice such ~~holder~~Holder’s or Beneficial Owner’s ~~address~~address (including electronic mail), contact and fax number information. No sales may be made under the applicable Registration Statement during any Blackout ~~Period (with respect to clause (ii) of the definition thereof, of which the holders of Registrable Securities have or are deemed to have received notice)~~Period. In the event of a Blackout Period under ~~clause (ii) of~~ the definition thereof, the Company shall (x) deliver to the ~~holders~~ Holders of Registrable Securities a certificate signed by the chief executive officer, chief financial officer, general counsel or treasurer of the Company confirming that the conditions described in ~~clause (ii) of~~ the definition of Blackout Period are met, which certificate shall contain an approximation of the anticipated delay, and (y) notify each ~~holder~~ Holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each ~~holder~~ Holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. Notwithstanding the foregoing, a Holder of Registrable Securities shall be entitled to elect not to receive any notice (whether oral or written) of any Blackout Period so long as such Hxxxxx agrees in writing (which may be by email) that it shall not sell any Registrable Securities under the applicable Registration Statement until it later elects to once again receive notices of Blackout Periods. In connection with the expiration of any Blackout Period and without any further request from a ~~holder~~ Holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof shall~~ will be deemed to have expired when the Company has notified the ~~holders~~ Holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Registration Date shall be considered a Blackout Period described in ~~clause (ii) of~~ the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in ~~clause (i) of~~ the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (b) At After the expiration of the Restricted Period, at any time ~~that~~ a Registration Statement is effective and prior to the Registration Termination Date, if a ~~holder~~ Holder of Registrable Securities (an “Initiating Holder”) delivers a notice to the Company (a “Take-Down Notice”) stating that it, together with any other ~~holder of Registrable Securities~~Persons, ~~intend~~ intends to sell at least $~~75,000,000~~ 25,000,000 in aggregate of Registrable Securities held by such ~~holder~~ Holder and such other ~~holders~~ Persons (~~provided~~ provided, that, if the ~~holders of Registrable Securities~~ Purchasers and their respective Affiliates do not collectively own at least $~~75,000,000~~ 25,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by ~~them (but such amount may not in any case be less than $25,000,000 collectively of Registrable Securities)~~them, in each case, pursuant to the Registration Statement, then, the Company shall (i) amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten ~~Offering~~Offering and (ii) in the case of a Marketed Underwritten Offering only, within one (1) Business Day of receipt of the Take-Down Notice and confirmation of such receipt by the treasurer or chief financial officer of the Company and by counsel to the Company, deliver a written notice (a “Take-Down Participation Notice”) of any such request to all other Holders of Registrable Securities (the “Eligible Participation Holders”), which Take-Down Participation Notice shall offer each such Holder the opportunity to include in such registration that number of Registrable Securities of the same type (i.e., Notes or Company Common Stock) to be offered by the Initiating Holder as each such Holder (a “Participating Holder”) may request. The Company shall include in such registration all such Registrable Securities with respect to which the Company has received from a Holder entitled to receive a Take-Down Participation Notice pursuant to the preceding sentence written requests for inclusion therein within one (1) Business Day after the date the Take-Down Participation Notice was delivered; provided, that each Selling Holder will retain the right to withdraw their Registrable Securities from such registration in writing to the underwriters prior to the pricing of the applicable offering. In connection with any Underwritten Offering of Registrable Securities for which a ~~holder~~ Holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in the first sentence above, and where the Take-Down Notice contemplates ~~marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters~~a Marketed Underwritten Offering, the Company will use reasonable efforts to cooperate and make its senior officers reasonably available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located). The ~~holder of Registrable Securities that delivered the applicable Take-Down Notice~~ Initiating Holder shall select the underwriter(s) for ~~the~~ each Underwritten Offering; ~~provided~~ provided, that the managing underwriter(s) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter) of a Marketed Underwritten Offering shall be reasonably acceptable to the Company. The Company shall select the counsel for the managing underwriter(s); ~~provided~~ provided, that such counsel shall be reasonably acceptable to the underwriter(s) and the ~~holder of Registrable Securities that delivered the applicable Take-Down Notice~~Initiating Holder. ~~Such holder~~ The Initiating Holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by such ~~holder~~ Holder to the underwriters in such Underwritten Offering. ~~Such holder~~ The Initiating Holder shall reasonably determine the timing of any such registration and sale. ~~Such holder~~ The Initiating Holder shall determine the applicable underwriting discount and other financial terms, and ~~such holder~~ the Holders of the Registrable Securities sold in the Underwritten Offering shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten Offering. Without the consent of the ~~applicable holder of Registrable Securities subject to an Underwritten Offering~~Initiating Holder, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable ~~Securities.~~ Securities of the type (ci.e., Notes or Company Common Stock) ~~Notwithstanding anything herein to~~ offered by the ~~contrary~~Initiating Holder in such Underwritten Offering. For the avoidance of doubt, ~~(i) if holders~~ unless the Initiating Holder otherwise agrees, no Holders of Registrable Securities or any other securities issued by the Company, other than the Initiating Holder, shall have the opportunity to include any Registrable Securities or any such other securities in an Underwritten Offering initiated by the Initiating Holder that is not a Marketed Underwritten Offering (i.e., block trade). Notwithstanding anything to the contrary herein, if Holders of Registrable Securities that are affiliates of the Company (as defined under Rule 405 of the Securities Act) engage or propose to engage in a transaction that would be a “distribution” (as defined in Regulation M under the Exchange Act~~) of Registrable Securities~~, such ~~holders~~ Holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $75,000,000 of Registrable Securities held by such holders (provided that, if collectively the holders of Registrable Securities and their Affiliates do not own at least $75,000,000 of Registrable Securities, they shall be permitted to engage in such distribution with respect to all of the Registrable Securities held by them (for so long as they hold collectively at least $25,000,000 of Registrable Securities)). (dc) In connection with a distribution of Registrable Securities in which the ~~holders~~ Holders of Registrable Securities are selling an aggregate of at least $~~200,000,000~~ 50,000,000 of Registrable Securities, the Company shall, to be the extent requested by the managing underwriter(s) of such a distribution, be subject to a restricted period of the same length of time as such ~~holder~~ Holder agrees with the managing underwriter(s) (but not to exceed 90 days) during which the Company may not offer, sell or grant any option to purchase Company Common Stock (in the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock) and any debt securities (in the case of an offering of debt securities) of the Company, subject to customary carve-outs that include, but are not limited to, (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock plans and (ii) in connection with acquisitions, joint ventures and other strategic transactions (subject to, in the case of this clause (ii), a limit not to exceed 10% of the Company’s then outstanding Company Common Stock). (d) In addition to the registration rights provided in this Section 5.02, Holders of the Notes shall have analogous rights to sell such securities in a marketed offering under Rule 144A through one or more initial purchasers on a firm-commitment basis, on the terms, subject to the conditions and using procedures that are substantially equivalent to those specified in this Section 5.02 and Section 5.03, mutatis mutandis. The Company agrees to use its reasonable efforts to cooperate to effect any such sales under such Rule 144A; provided, that nothing in this Section 5.02(d) shall impose any additional or more burdensome obligations on the Company than would apply under this Section 5.02 and Section 5.03, in each case, mutatis mutandis in respect of a registered Underwritten Offering, or require that the Company take any actions that it would not be required to take in a substantially similar Underwritten Offering of such Notes. (e) If the managing underwriter or underwriters of any firm commitment Underwritten Offering advise the Selling Holders in writing that, in their view, the total amount of Registrable Securities proposed to be sold in such Underwritten Offering (including, without limitation, Registrable Securities proposed to be included by any Participating Holder) exceeds the largest amount (the “Orderly Sale Amount”) that can be sold in an orderly manner in such Underwritten Offering within a price range acceptable to the Initiating Holder, then there shall be included in such firm commitment Underwritten Offering an amount of Registrable Securities not exceeding the Orderly Sale Amount, and such included amount of Registrable Securities shall be allocated pro rata among the Selling Holders on the basis of the number and type of Subject Securities then proposed to be sold by the respective Selling Holders (e.g., if Notes are being offered and sold, the pro rata amounts will be calculated based on the aggregate principal amount of Notes proposed to be sold, without regard to shares of Company Common Stock Beneficially Owned by the respective Selling Holders). (f) If requested by the managing underwriter of an Underwritten Offering, for which SL or any of its Affiliates is the Initiating Holder, unless such Initiating Holder otherwise agrees, no Eligible Participation Holder or Initiating Holder shall offer for sale (including by short sale), grant any option for the purchase of, or otherwise transfer (whether by actual disposition or effective economic disposition due to cash settlement, derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of the Registrable Securities or otherwise), any Notes or Company Common Stock (or interests therein) or securities convertible into or exchangeable for Notes or Company Common Stock without the prior written consent of such managing underwriter for a period designated by such managing underwriter in writing to the Eligible Participation Holders and the Initiating Holder, which shall begin the earlier of the date of the underwriting agreement and the commencement of marketing efforts, and shall not in any event last longer than 60 days following such effective date. If requested by the managing underwriter of any such Underwritten Offering, each Eligible Participation Holder shall execute a separate agreement to the foregoing effect; provided, that each Eligible Participation Holder shall negotiate its respective lock-up agreement; provided, further, that if any such lock-up agreement (i) provides for exceptions from any restrictions contained therein, such exceptions shall automatically apply equally to each Selling Holder or (ii) is terminated or waived in whole or in part for any Selling Holder, such termination or waiver shall automatically apply to each other Selling Holder. Each lock-up agreement shall permit, and this Section 5.02(f) shall be deemed to permit, transfers pursuant to the terms of Permitted Loans, Permitted Debt Financing Transactions and other customary lock-up exceptions, including for gifts, distributions and other transfers not for value (and including in respect of customary charitable donations substantially contemporaneously with distribution to the donor, free of further lock-up agreement transfer restrictions by the donee, by a Selling Holder or its direct or indirect distributees). The obligations of any person under this Section 5.02(f) are not in limitation of lock-up or transfer restrictions that may otherwise apply to any Registrable Securities.

Appears in 1 contract

Samples: Investment Agreement (Viavi Solutions Inc.)

Registration Limitations and Obligations. (a) Subject to Section 25.01, the Company will use commercially reasonable efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; provided, that no such supplement, amendment or filing will be required during a Blackout Period. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders ~~of Registrable Securities~~ to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 35.02, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout Period if such holder or Beneficial Owner has specified in writing to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s ~~address,~~ address and contact ~~and fax number~~ information. No sales may be made under the applicable Registration Statement during any Blackout Period ~~(with respect to clause (ii) of the definition thereof,~~ of which the holders of Registrable Securities have ~~or are deemed to have~~ received notice). In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial officer, general counsel or treasurer of the Company confirming that the conditions described in clause (ii) of the definition of Blackout Period are met, which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof~~ shall be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the date the initial Registration ~~Date~~ Statement has been declared effective shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (b) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities delivers a notice to the Company (a “Take-Down Notice”) stating that it, together with any other ~~holder of Registrable Securities~~Persons, intend to sell at least $~~75,000,000~~ 25,000,000 in aggregate of Registrable Securities held by such holder and such other holders (provided that, if the holders of Registrable Securities and their Affiliates do not collectively own at least $75,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by them (but such amount may not in any case be less than $25,000,000 collectively of Registrable Securities)Persons, in each case, pursuant to the Registration Statement, then, no more than two times in any 12-month period, the Company shall amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten Offering. In connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in first sentence above, and where the Take-Down Notice contemplates marketing efforts ~~not to exceed twenty-four (24) hours~~ by the Company and the underwriters, the Company will use reasonable efforts to cooperate and make its senior officers available for participation in such marketing ~~efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located)~~efforts. The holder of the Registrable Securities that delivered the applicable Take-Down Notice shall select the ~~underwriter(s~~underwriters (including the managing underwriters) for ~~the~~ each Underwritten Offering; provided that the ~~managing underwriter(s) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter)~~ underwriters shall be reasonably acceptable to the Company. The Company shall select the counsel for the ~~managing underwriter(s)~~underwriters; provided that such counsel shall be reasonably acceptable to the ~~underwriter(s)~~ managing underwriters and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by such holder to the underwriters in such Underwritten Offering. Such holder shall reasonably determine the timing of any such registration and sale. Such holder shall determine the applicable underwriting discount and other financial terms, and such holder of the Registrable Securities sold in the Underwritten Offering shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten Offering. Without the consent of the ~~applicable holder~~ holders of a majority of Registrable Securities subject to an Underwritten Offering, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities. (c) If the managing underwriter or underwriters of any firm commitment Underwritten Offering advise the Selling Holders in such offering in writing that, in their view, the total amount of Registrable Securities proposed to be sold in such Underwritten Offering exceeds the largest amount (the “Orderly Sale Amount”) that can be sold in an orderly manner in such Underwritten Offering within a price range acceptable to the majority in interest of Selling Holders, then there shall be included in such firm commitment Underwritten Offering an amount of Registrable Securities not exceeding the Orderly Sale Amount, and such included amount of Registrable Securities shall be allocated pro rata among the Selling Holders with respect to such Underwritten Offering on the basis of the number of Registrable Securities beneficially owned by each such Selling Holder. (d) If the managing underwriters have not limited the Registrable Securities to be included in the Underwritten Offering, the Company may include securities for its own account or for the account of others in such registration if the managing underwriters so agree and if the number of Registrable Securities which would otherwise have been included in such Underwritten Offering will not be limited thereby. (e) Notwithstanding anything herein to the contrary, (i) if holders of Registrable Securities engage or propose to engage in a “distribution” (as defined in Regulation M under the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $~~75,000,000~~ 25,000,000 of Registrable Securities held by such holders (provided that, if collectively ~~the holders of Registrable Securities~~ a Purchaser and ~~their~~ its Affiliates do not own at least $~~75,000,000~~ 25,000,000 of Registrable Securities, they shall be permitted to engage in such distribution with respect to all of the Registrable Securities held by ~~them (for so long as they hold collectively at least $25,000,000 of Registrable Securities)~~them). (df) In connection with ~~a distribution of Registrable Securities in which the holders of Registrable Securities are selling~~ an ~~aggregate of at least $200,000,000 of Registrable Securities~~Underwritten Offering, the Company and its directors and officers shall, to be the extent requested by managing ~~underwriter(s)~~ underwriters of such a distribution, be subject to a customary lockup agreement with a restricted period of the same length of time as such holder agrees with the managing ~~underwriter(s)~~ underwriters (but not to exceed 90 days) during which the Company may not ~~offer~~issue or transfer, ~~sell~~ and its officers and directors may not transfer, ADSs or ~~grant~~ Company Ordinary Shares or any ~~option to purchase~~ securities exchangeable or exercisable for, or convertible into, ADSs or Company Common Stock (in the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock) and any debt securities (in the case of an offering of debt securities) of the CompanyOrdinary Shares, subject to customary carve-outs ~~that~~ agreed with the managing underwriters, which may include, but are not limited to, : (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock ~~plans and~~ plans, (ii) sales in connection with the settlement of equity awards to cover tax withholding obligations, (iii) sales under trading plans pursuant to Rule 10b5-1, and (iv) issuances in connection with acquisitions, joint ventures and other strategic transactions (~~subject to~~which, in the case of this clause (iiiv), ~~a limit~~ would not exceed up to ~~exceed~~ 10% of the ~~Company’s then~~ outstanding Company ~~Common Stock~~Ordinary Shares at the time of such Underwritten Offering). (g) If the Company files a Registration Statement with respect to an offering of ADSs on behalf of the Company or on behalf of one or more shareholders of the Company, or otherwise seeks to commence an offering of ADSs on behalf of the Company or one or more shareholders of the Company, then the Company shall be required to give advance notice of the filing of the Registration Statement or the offering to the Purchasers at least five business days before the filing of the Registration Statement or the commencement of the offering. Upon receipt of the Company notice, each of the Purchasers shall have five business days to inform the Company whether or not they want to include their Registrable Securities in the proposed offering. The Company shall include in the offering any Registrable Securities which a Purchaser has requested to be included in such offering. If the managing underwriter of the offering advises the Company that the number of ADSs proposed to be sold exceeds the Orderly Sale Amount, then the Company shall include in the offering such lower number of ADSs that equals the Orderly Sale Amount, with the Company having first priority, the other shareholders having second priority, and the piggybacking Purchasers having third priority with respect to inclusion of their ADSs in the offering.

Appears in 1 contract

Samples: Investment Agreement (Oatly Group AB)

Appears in 1 contract

Samples: Securities Purchase Agreement (MDC Partners Inc)

Appears in 1 contract

Samples: Investment Agreement (Motorola Solutions, Inc.)

Registration Limitations and Obligations. (aA) Subject to Section 25.01, the Company will use commercially reasonable best efforts to prepare such supplements or amendments (including a post-effective ~~amendment~~amendments), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; ~~provided,~~ provided that no such supplement, amendment or filing will be required during a Blackout Period. In order to facilitate the Company’s determination of whether to initiate a Blackout Period, the Purchasers shall give the Company notice of a proposed sale of Registrable Securities pursuant to the Registration Statement at least two (2) Business Days (or, if two (2) Business Days’ notice is not practicable, one (1) Business Day) prior to the proposed date of sale (which notice shall not bind such Purchaser to make any sale). (B) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders of Registrable Securities to defer filing a Registration Statement and suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 35.02, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout ~~Period~~ Period, or the certificate described in the following sentence, if such holder or Beneficial Owner has specified in writing to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s ~~address,~~ address and contact ~~and fax number~~ information. No sales may be made under the applicable Registration Statement during any Blackout ~~Period (with respect to clause (ii) of the definition thereof, of which the holders of Registrable Securities have or are deemed to have received notice)~~Period. In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial officer, general counsel or treasurer of the Company confirming that the conditions described in clause (ii) of the definition of Blackout Period are met, which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective ~~amendment~~amendments, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof~~ shall be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Target Registration Date shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (bC) ~~At any time that a Registration Statement is effective and prior~~ Notwithstanding anything to the Registration Termination Date, if a holder of Registrable Securities delivers a notice to the Company (a “Take-Down Notice”) stating that it, together with any other holder of Registrable Securities, intend to sell at least $75,000,000 contrary in aggregate of Registrable Securities held by such holder and such other holders (provided that, if the holders of Registrable Securities and their Affiliates do not collectively own at least $75,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by them (but such amount may not in any case be less than $25,000,000 collectively of Registrable Securities), in each case, pursuant to the Registration Statement, thenthis Agreement, the Company shall ~~amend~~ not have any obligation to prepare any prospectus supplement, participate in any due diligence, execute any agreements or ~~supplement~~ certificates or deliver legal opinions (other than customary de-legending certificates and opinions or any customary Exhibit 5 opinion required in connection with the initial filing of the Registration ~~Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available~~ Statement) or obtain comfort letters in ~~order to enable such Registrable Securities to be distributed in an Underwritten Offering. In~~ connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in first sentence above, and where the Take-Down Notice contemplates marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters, the Company will use reasonable efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside sales of the city in which they are primarily located). The holder of Registrable Securities that delivered the applicable Take-Down Notice shall select the underwriter(s) for the Underwritten Offering; provided that the managing underwriter(s) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter) shall be reasonably acceptable to the Company. The Company shall select the counsel for the managing underwriter(s); provided that such counsel shall be reasonably acceptable to the underwriter(s) and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by such holder to the underwriters in such Underwritten Offering. Such holder shall reasonably determine the timing of any such registration and sale. Such holder shall determine the applicable underwriting discount and other financial terms, and such holder of the Registrable Securities sold in the Underwritten Offering shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten Offering. Without the consent of the applicable holder of Registrable Securities subject to an Underwritten Offering, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities. (c) Notwithstanding anything herein to the contrary, (i) if holders of Registrable Securities engage or propose to engage in a “distribution” (as defined in Regulation M under the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $75,000,000 of Registrable Securities held by such holders (provided that, if collectively the holders of Registrable Securities and their Affiliates do not own at least $75,000,000 of Registrable Securities, they shall be permitted to engage in such distribution with respect to all of the Registrable Securities held by them (for so long as they hold collectively at least $25,000,000 of Registrable Securities)). (d) In connection with a distribution of Registrable Securities in which the holders of Registrable Securities are selling an aggregate of at least $200,000,000 of Registrable Securities, the Company shall, to be extent requested by managing underwriter(s) of such a distribution, be subject to a restricted period of the same length of time as such holder agrees with the managing underwriter(s) (but not to exceed 90 days) during which the Company may not offer, sell or grant any option to purchase Company Common Stock ~~(in~~ under the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock) and any debt securities (in the case of an offering of debt securities) of the Company, subject to customary carve-outs that include, but are not limited to, (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock plans and (ii) in connection with acquisitions, joint ventures and other strategic transactions (subject to, in the case of this clause (ii), a limit not to exceed 10% of the Company’s then outstanding Company Common Stock)Registration Statement.

Appears in 1 contract

Samples: Investment Agreement (Eos Energy Enterprises, Inc.)

Registration Limitations and Obligations. (a) Subject to Section 25.02, the Company will use reasonable efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; provided, that no such supplement, amendment or filing will be required during a Blackout Period. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders ~~of Registrable Securities~~ to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 35.03, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout Period if such holder or Beneficial Owner has specified in writing to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s ~~address,~~ address and contact ~~and fax number~~ information. No sales may be made under the applicable Registration Statement during any Blackout Period ~~(with respect to clause (ii) of the definition thereof,~~ of which the holders of Registrable Securities have ~~or are deemed to have~~ received notice). In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial officer, general counsel or treasurer of the Company confirming that the conditions described in clause (ii) of the definition of Blackout Period are met, which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof~~ shall be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Registration Date shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (b) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities delivers a notice to the Company (a “Take-Down Notice”) stating that it, together with any other ~~holder of Registrable Securities~~Persons, intend to sell at least $~~75,000,000~~ 50,000,000 in aggregate of Registrable Securities held by such holder and such other holders (provided that, if the holders of Registrable Securities and their Affiliates do not collectively own at least $75,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by them (but such amount may not in any case be less than $25,000,000 collectively of Registrable Securities)Persons, in each case, pursuant to the Registration Statement, then, no more than two (2) times in any twelve (12)-month period, the Company shall amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten Offering. In connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in first sentence above, and where the Take-Down Notice contemplates marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters, the Company will use reasonable efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located). The Company shall select the underwriters (including the managing underwriters) for each Underwritten Offering; provided that the underwriters shall be reasonably acceptable to the holder of Registrable Securities that delivered the applicable Take-Down Notice shall select the underwriter(s) for the Underwritten Offering; provided that the managing underwriter(s) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter) shall be reasonably acceptable to the CompanyNotice. The Company shall select the counsel for the ~~managing underwriter(s)~~underwriters; provided that such counsel shall be reasonably acceptable to the ~~underwriter(s)~~ managing underwriters and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by such holder to the underwriters in such Underwritten Offering. Such holder shall reasonably determine the timing of any such registration and sale. Such holder shall determine the applicable underwriting discount and other financial terms, and such holder of the Registrable Securities sold in the Underwritten Offering shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten Offering. Without the consent of the applicable holder of Registrable Securities subject to an Underwritten Offering, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities. (c) Notwithstanding anything herein to the contrary, (i) if holders of Registrable Securities engage or propose to engage in a “distribution” (as defined in Regulation M under the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $75,000,000 of Registrable Securities held by such holders (provided that, if collectively the holders of Registrable Securities and their Affiliates do not own at least $75,000,000 of Registrable Securities, they shall be permitted to engage in such distribution with respect to all of the Registrable Securities held by them (for so long as they hold collectively at least $25,000,000 of Registrable Securities)). (d) In connection with ~~a distribution of Registrable Securities in which the holders of Registrable Securities are selling~~ an ~~aggregate of at least $200,000,000 of Registrable Securities~~Underwritten Offering, the Company and its directors and officers shall, to be the extent requested by managing ~~underwriter(s)~~ underwriters of such a distribution, be subject to a customary lockup agreement with a restricted period of the same length of time as such holder agrees with the managing ~~underwriter(s)~~ underwriters (but not to exceed 90 days) during which the Company may not ~~offer~~issue or transfer, ~~sell or grant any option to purchase Company Common Stock (in the case of an offering~~ and its officers and directors may not transfer, shares of Company Common Stock or any securities exchangeable or exercisable for, or convertible ~~or exchangeable for~~ into, shares of Company Common Stock~~) and any debt securities (in the case of an offering of debt securities) of the Company~~, subject to customary carve-outs ~~that~~ agreed with the managing underwriters, which may include, but are not limited to, : (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock ~~plans~~ plans, (ii) sales in connection with the settlement of equity awards to cover tax withholding obligations, and (iiiii) sales under trading plans pursuant to Rule 10b5-1, and (iv) in connection with acquisitions, joint ventures and other strategic transactions (~~subject to~~which, in the case of this clause (iiiv), ~~a limit~~ would not exceed up to ~~exceed~~ 10% of the ~~Company’s then~~ outstanding Company Common ~~Stock~~Stock at the time of such Underwritten Offering). (d) In addition to the registration rights provided in this Section 5.03, holders of the Notes shall have analogous rights to sell such securities in a marketed offering under Rule 144A through one or more initial purchasers on a firm-commitment basis, on the terms, subject to the conditions and using procedures that are substantially equivalent to those specified in this Section 5.03 and Section 5.04, mutatis mutandis. The Company agrees to use its reasonable efforts to cooperate to effect any such sales under such Rule 144A; provided that nothing in this Section 5.03(d) shall impose any additional or more burdensome obligations on the Company than would apply under this Section 5.03 and Section 5.04, in each case, mutatis mutandis in respect of a registered Underwritten Offering, or require that the Company take any actions that it would not be required to take in a substantially similar Underwritten Offering of such Notes.

Appears in 1 contract

Samples: Exchange and Investment Agreement (Nikola Corp)

Appears in 1 contract

Samples: Investment Agreement (Nikola Corp)

Registration Limitations and Obligations. (a) Subject to Section 25.01, the Company will use reasonable efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; provided, that no such supplement, amendment or filing will be required during a Blackout Period. In order to facilitate the Company’s determination of whether to initiate a Blackout Period, the Purchaser shall give the Company notice of a proposed sale of Registrable Securities pursuant to the Registration Statement at least two (2) Business Days (or, if two Business Days is not practicable, one (1) Business Day) prior to the proposed date of sale (which notice shall not bind the Purchaser to make any sale). (b) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders of Registrable Securities to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 35.02, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout ~~Period~~ Period, or the certificate described in the following sentence, if such holder or Beneficial Owner has specified in writing (including electronic mail) to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s ~~address~~address (including electronic mail), contact and fax number information. No sales may be made under the applicable Registration Statement during any Blackout ~~Period (with respect to clause (ii) of the definition thereof, of which the holders of Registrable Securities have or are deemed to have received notice)~~Period. In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial ~~officer,~~ officer or general counsel ~~or treasurer~~ of the Company confirming that the conditions described in ~~clause (ii) of~~ the definition of Blackout Period are met (but which certificate need not specify the nature of the event causing such conditions to have been met), which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof~~ shall be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Target Registration Date shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (bc) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities (an “Initiating Holder”) delivers a notice to the Company (a “Take-Down Notice”) stating that ~~it, together with any other holder of Registrable Securities, intend~~ it intends to sell at least $~~75,000,000 in aggregate~~ 25,000,000 of Registrable Securities held by such holder ~~and such other holders~~ (provided that, if ~~the holders of Registrable Securities~~ a Purchaser and ~~their~~ its Affiliates do not ~~collectively~~ own at least $~~75,000,000~~ 25,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by ~~them (but such amount may not in any case be less than $25,000,000 collectively of Registrable Securities~~them), in each case, pursuant to the Registration Statement, then, the Company shall (i) amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten Offering (subject to Section 5.02(b)) and (ii) (x) within one (1) Business Day of receipt of the Take-Down Notice and confirmation of such receipt by the treasurer or chief financial officer of the Company and by counsel to the Company, deliver a written notice (a “Take-Down Participation Notice”) of any such request to all other holders of Registrable Securities (the “Eligible Participation Holders”), which Take-Down Participation Notice shall offer each such holder the opportunity to include in such registration that number of Registrable Securities of the same type (i.e., Notes or Company Common Stock) to be offered by the Initiating Holder as each such holder (a “Participating Holder”) may request. The Company shall include in such registration all such Registrable Securities with respect to which the Company has received from a holder entitled to receive a Take-Down Participation Notice pursuant to the preceding sentence written requests for inclusion therein within (i) in the case of an Underwritten Offering that is not a Marketed Underwritten Offering, one (1) Business Day after the date the Take-Down Participation Notice was delivered and confirmed received by the treasurer or chief financial officer of the Company and by counsel to the Company and (ii) in the case of a Marketed Underwritten Offering, three (3) Business Days after the date the Take-Down Participation Notice was delivered; provided, that each Selling Holder will retain the right to withdraw their Registrable Securities from such registration in writing to the underwriters prior to the pricing of the applicable offering. In connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in the first sentence ~~above,~~ of this Section 5.02(c) and ~~where~~ the Take-Down Notice contemplates ~~marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters~~a Marketed Underwritten Offering, the Company will use reasonable efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located). ~~The holder~~ A Majority in Interest of ~~Registrable Securities that delivered~~ Selling Holders shall have the ~~applicable Take-Down Notice shall~~ right hereunder to, in their sole discretion: (i) select the underwriter(s) for ~~the~~ each Underwritten Offering~~; provided that the managing underwriter(s~~, (ii) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter) shall be reasonably acceptable to the Company. The Company shall select the counsel for the managing underwriter(s); provided that such counsel shall be reasonably acceptable to the underwriter(s) and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by ~~such holder~~ the Selling Holders to the underwriters in such Underwritten Offering~~. Such holder shall reasonably~~ , as well as any other financial terms, (iii) determine the timing of any such registration and ~~sale. Such holder shall~~ sale and (iv) determine the ~~applicable underwriting discount and~~ total number of Registrable Securities that can be included in such Underwritten Offering in consultation with the managing underwriters (collectively, the “Offering Terms”); provided, that the Initiating Holder shall consult with each other ~~financial terms, and such holder~~ Participating Holder (other than any Participating Holder that is not a member of the ~~Registrable Securities sold~~ Silver Lake Group) in respect of the ~~Underwritten~~ Offering Terms. Each Selling Holder shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten ~~Offering~~Offering for the Registrable Securities sold by such Selling Holder. Without the consent of ~~the applicable holder~~ a Majority in Interest of ~~Registrable Securities subject to an Underwritten Offering~~Selling Holders, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities of the type (i.e., Notes, Warrants or Company Common Stock) offered by the Initiating Holder in such Underwritten Offering. (d) If the managing underwriter or underwriters of any firm commitment Underwritten Offering advise the Selling Holders in writing that, in their view, the total amount of Registrable Securities proposed to be sold in such Underwritten Offering (including, without limitation, Registrable Securities proposed to be included by any Participating Holder) exceeds the largest amount (the “Orderly Sale Amount”) that can be sold in an orderly manner in such Underwritten Offering within a price range acceptable to the Majority in Interest of Selling Holders, then there shall be included in such firm commitment Underwritten Offering an amount of Registrable Securities not exceeding the Orderly Sale Amount, and such included amount of Registrable Securities shall be allocated pro rata among the Selling Holders on the basis of the number and type of Subject Securities then proposed to be sold by the respective Selling Holders (e.g., if Notes are being offered and sold, the pro rata amounts will be calculated based on the aggregate principal amount of Notes proposed to be sold without regard to shares of Company Common Stock Beneficially Owned by the respecting Selling Holders). (e) If requested by the managing underwriter of an Underwritten Offering for which a member of the Silver Lake Group is the Initiating Holder, unless such Initiating Holder otherwise agrees, no Eligible Participation Holder or Initiating Holder shall offer for sale (including by short sale), grant any option for the purchase of, or otherwise transfer (whether by actual disposition or effective economic disposition due to cash settlement, derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of the Registrable Securities or otherwise), any Notes or Company Common Stock (or interests therein) or securities convertible into or exchangeable for Notes or Company Common Stock without the prior written consent of such managing underwriter for a period designated by such managing underwriter in writing to the Eligible Participation Holders and the Initiating Holder, which shall begin the earlier of the date of the underwriting agreement and the commencement of marketing efforts, and shall not in any event last longer than sixty (60) days following such effective date. If requested by the managing underwriter of any such Underwritten Offering, each Eligible Participation Holder shall execute a separate agreement to the foregoing effect; provided, that each Eligible Participation Holder shall negotiate its respective lock-up agreement; provided, further, that if any such lock-up agreement (i) provides for exceptions from any restrictions contained therein, such exceptions shall automatically apply equally to each Selling Holder or (ii) is terminated or waived in whole or in part for any Selling Holder, such termination or waiver shall automatically apply to each other Selling Holder. Each lock-up agreement shall permit, and this Section 5.02(e) shall be deemed to permit, transfers pursuant to the terms of Permitted Loans, Permitted Debt Financing Transactions and other customary lock-up exceptions, including for gifts, distributions and other transfers not for value (and including in respect of customary charitable donations substantially contemporaneously with distribution to the donor, free of further lock-up agreement transfer restrictions by the donee, by a Selling Holder or its direct or indirect distributees). The obligations of any person under this Section 5.02(e) are not in limitation of lock-up or transfer restrictions that may otherwise apply to any Registrable Securities. (cf) In addition to the registration rights provided in Section 5.02(c), holders of the Notes shall have analogous rights to sell such securities in a marketed offering under Rule 144A under the Securities Act through one or more initial purchasers on a firm-commitment basis, using procedures that are substantially equivalent to those specified in Section 5.02 and Section 5.03. The Company agrees to use its reasonable efforts to cooperate to effect any such sales under such Rule 144A. Nothing in this Section 5.02(f) shall impose any additional or more burdensome obligations on the Company than would apply under Section 5.02 and Section 5.03, in each case, mutatis mutandis in respect of a registered Underwritten Offering, or require that the Company take any actions that it would not be required to take in an Underwritten Offering of such Notes. (g) Notwithstanding anything herein to the contrary, (i) if holders of Registrable Securities engage or propose to engage in a “distribution” (as defined in Regulation M under the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $~~75,000,000~~ 25,000,000 of Registrable Securities held by such holders (provided that, if collectively ~~the holders of Registrable Securities~~ Purchaser and ~~their~~ its Affiliates do not own at least $~~75,000,000~~ 25,000,000 of Registrable Securities, they shall be permitted to engage in such distribution with respect to all of the Registrable Securities held by ~~them (for so long as they hold collectively at least $25,000,000 of Registrable Securities)~~them). (dh) In connection with a distribution of Registrable Securities in which ~~the holders~~ a holder of Registrable Securities ~~are~~ is selling ~~an aggregate of~~ at least $~~200,000,000~~ 50,000,000 of Registrable Securities, the Company shall, to be extent requested by the managing underwriter(s) of such a distribution, be subject to a restricted period of the same length of time as such holder agrees with the managing underwriter(s) (but not to exceed 90 60 days) during which the Company may not offer, sell or grant any option to purchase Company Common Stock (in the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock) and any debt securities (in the case of an offering of debt securities) of the Company, subject to customary carve-outs that include, but are not limited to, (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock plans and (ii) in connection with acquisitions, joint ventures and other strategic ~~transactions (subject to, in the case of this clause (ii), a limit not to exceed 10% of the Company’s then outstanding Company Common Stock)~~transactions.

Appears in 1 contract

Samples: Investment Agreement (Zuora Inc)

Registration Limitations and Obligations. (a) Subject to Section 25.01, the Company will use reasonable efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; provided, that no such supplement, amendment or filing will be required during a Blackout Period. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders ~~of Registrable Securities~~ to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 35.02, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout Period if such holder or Beneficial Owner has specified in writing to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s ~~address,~~ address and contact ~~and fax number~~ information. No sales may be made under the applicable Registration Statement during any Blackout Period ~~(with respect to clause (ii) of the definition thereof,~~ of which the holders of Registrable Securities have ~~or are deemed to have~~ received notice). In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial officer, general counsel or treasurer of the Company confirming that the conditions described in clause (ii) of the definition of Blackout Period are met, which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof~~ shall be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Registration Date shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (b) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities (the “Initiating Holder”) delivers a notice to the Company (a “Take-Down Notice”) stating that it, together with any other ~~holder of Registrable Securities~~Persons, including any Participating Holders, intend to sell at least $~~75,000,000~~ 50,000,000 in aggregate of Registrable Securities held by such holder and such other holders (provided that, if the holders of Registrable Securities and their Affiliates do not collectively own at least $75,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by them (but such amount may not in any case be less than $25,000,000 collectively of Registrable Securities)Persons, in each case, pursuant to the Registration Statement, then, no more than two (2) times in any twelve (12)-month period, the Company shall (i) within one (1) Business Day of receipt of the Take-Down Notice, deliver a written notice (a “Take-Down Participation Notice”) of any such request to all other holders of Registrable Securities, which Take-Down Participation Notice shall offer each such holder the opportunity to include in such registration that number of Registrable Securities to be offered by the Initiating Holder as each such holder (a “Participating Holder”) may request; and (ii) amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten Offering. The Company shall include in such registration all such Registrable Securities with respect to which the Company has received from a holder entitled to receive a Take-Down Participation Notice pursuant to the preceding sentence written requests for inclusion therein within two (2) Business Days after the date the Take-Down Participation Notice was delivered; provided, that each Selling Holder will retain the right to withdraw their Registrable Securities from such registration in writing to the underwriters prior to the pricing of the applicable offering. In connection with any Underwritten Offering of Registrable Securities for which ~~a holder~~ an Initiating Holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in first sentence above, and where the Take-Down Notice contemplates marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters, the Company will use reasonable efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located). The ~~holder of Registrable Securities that delivered the applicable Take-Down Notice~~ Company shall select the ~~underwriter(s~~underwriters (including the managing underwriters) for ~~the~~ each Underwritten Offering; provided that the ~~managing underwriter(s) (if there is only one underwriter, such underwriter~~ bookrunning underwriters shall be ~~deemed to be the managing underwriter) shall be~~ “bulge-bracket” investment banks reasonably acceptable to the ~~Company~~Selling Holders. The Company shall select the counsel for the ~~managing underwriter(s)~~underwriters; provided that such counsel shall be reasonably acceptable to the ~~underwriter(s)~~ managing underwriters and the ~~holder~~ Selling Holders. A Majority in Interest of ~~Registrable Securities that delivered the applicable Take-Down Notice. Such holder~~ Selling Holders shall determine (x) the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by ~~such holder~~ the Selling Holders to the underwriters in such Underwritten ~~Offering. Such holder shall reasonably determine~~ Offering and other financial terms of the Underwritten Offering and (y) the timing of any such registration and sale, which shall be reasonably acceptable to the Company. ~~Such holder shall determine the applicable underwriting discount and other financial terms, and such holder of the Registrable Securities sold in the Underwritten Offering~~ Each Selling Holder shall be solely responsible for ~~all such~~ the discounts and fees payable to the underwriters with respect to the Registrable Securities sold by such ~~underwriters~~ Selling Holder in such Underwritten Offering. Without the consent of the ~~applicable holder of Registrable Securities subject to an Underwritten Offering~~Initiating Holder, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities. (c) ~~Notwithstanding anything herein to~~ If the ~~contrary~~managing underwriter or underwriters of any firm commitment Underwritten Offering advise the Selling Holders in such offering in writing that, ~~(i) if holders~~ in their view, the total amount of Registrable Securities ~~engage or propose~~ proposed to ~~engage~~ be sold in such Underwritten Offering exceeds the largest amount (the “Orderly Sale Amount”) that can be sold in an orderly manner in such Underwritten Offering within a ~~“distribution” (as defined~~ price range acceptable to the Majority in ~~Regulation M under the Exchange Act)~~ Interest of ~~Registrable Securities~~Selling Holders, then there shall be included in such ~~holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $75,000,000~~ firm commitment Underwritten Offering an amount of Registrable Securities ~~held by~~ not exceeding the Orderly Sale Amount, and such ~~holders (provided that, if collectively the holders~~ included amount of Registrable Securities ~~and their Affiliates do not own at least $75,000,000 of Registrable Securities, they~~ shall be ~~permitted to engage in such distribution~~ allocated pro rata among the Selling Holders with respect to ~~all~~ such Underwritten Offering on the basis of the number of Registrable Securities ~~held~~ beneficially owned by ~~them (for so long as they hold collectively at least $25,000,000 of Registrable Securities))~~each such Selling Holder. (d) In connection with ~~a distribution of Registrable Securities in which the holders of Registrable Securities are selling~~ an ~~aggregate of at least $200,000,000 of Registrable Securities~~Underwritten Offering, the Company and its directors and officers shall, to be the extent requested by managing ~~underwriter(s)~~ underwriters of such a distribution, be subject to a customary lockup agreement with a restricted period of the same length of time as such holder agrees with the managing ~~underwriter(s)~~ underwriters (but not to exceed 90 days) during which the Company may not ~~offer~~issue or transfer, ~~sell or grant any option to purchase Company Common Stock (in the case of an offering~~ and its officers and directors may not transfer, shares of Company Common Stock or any securities exchangeable or exercisable for, or convertible ~~or exchangeable for~~ into, shares of Company Common Stock~~) and any debt securities (in the case of an offering of debt securities) of the Company~~, subject to customary carve-outs ~~that~~ agreed with the managing underwriters, which may include, but are not limited to, : (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock ~~plans~~ plans, (ii) sales in connection with the settlement of equity awards to cover tax withholding obligations, and (iiiii) sales under trading plans pursuant to Rule 10b5-1, and (iv) in connection with acquisitions, joint ventures and other strategic transactions (~~subject to~~which, in the case of this clause (iiiv), ~~a limit~~ would not exceed up to ~~exceed~~ 10% of the ~~Company’s then~~ outstanding Company Common ~~Stock~~Stock at the time of such Underwritten Offering). (e) [Reserved]. (f) Subject to the terms and conditions of this Agreement, if at any time the Company files a registration statement under the 1933 Act with respect to a Company Underwritten Offering of Common Stock by the Company for its own account, then the Company shall promptly give written notice of such filing to the Purchasers, which notice shall be given, to the extent reasonably practicable, no later than ten (10) Business Days before the filing or launch date (the “Piggyback Notice”). The Piggyback Notice and the contents thereof shall be kept confidential by the Purchasers and their respective Affiliates and representatives. The Piggyback Notice shall offer each Purchaser the opportunity to include (or cause to be included) in the registration statement for such Company Underwritten Offering, subject to the terms and conditions of this Agreement, the number of Registrable Securities as such investor may request (a “Piggyback Registration”). Subject to the terms and conditions of this Agreement, the Company shall include in each such Piggyback Registration all Registrable Securities with respect to which the Company has received from a Purchaser a written request for inclusion therein (a “Piggyback Request”) within five (5) Business Days following receipt of any Piggyback Notice by such Purchaser (but in any event not later than one (1) Business Day prior to the filing date of a Piggyback Registration Statement), which Piggyback Request shall specify the maximum number of Registrable Securities intended to be disposed of by such Selling Holder. The Selling Holders shall be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration at any time at least one (1) Business Day prior to the effective date of the registration statement relating to such Piggyback Registration. If the managing underwriter(s) of the Company Underwritten Offering subject to this Section 5.02(f) advise the Company in writing that it is their good faith opinion that the total amount of Registrable Securities requested to be so included, together with the shares of Common Stock that the Company intends to include in such offering (a “Company Underwriter Cutback”), exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Common Stock that the Company intends to include in such offering, then there shall be included in such firm commitment underwritten offering the number of Registrable Securities that in the good faith opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and shares of Common Stock intended to be sold by the Company shall be allocated for inclusion as follows: (A) first, all shares of Common Stock being sold by the Company for its own account; (B) second, and only if all the securities referred to in clause (A) have been included, all Registrable Securities requested to be included in such registration by the Selling Holders, pro rata, based on the number of Registrable Securities beneficially owned by such Selling Holders; and (C) third, and only if all the securities referred to in clauses (A) and (B) have been included, all shares of Common Stock of any other holders thereof (other than the Company and the Selling Holders) requesting inclusion in such Underwritten Offering, allocated pro rata on the basis of the number of shares of Common Stock beneficially owned by each such holder of Common Stock. For the avoidance of doubt, in any Company Underwritten Offering, the Company shall select the underwriters and counsel for the underwriters and shall determine (x) the pricing of the Common Stock offered pursuant to any such Company Underwritten Offering, including the underwriting discount and fees payable per share to the underwriters in such Company Underwritten Offering and other financial terms of the offering, (y) the timing of any such Company Underwritten Offering. Each Selling Holder shall be solely responsible for the discounts and fees payable to the underwriters with respect to the Registrable Securities sold by such Selling Holder in such Company Underwritten Offering.

Appears in 1 contract

Samples: Investment Agreement (View, Inc.)

Registration Limitations and Obligations. (a) Subject to Section 25.01, the Company will use reasonable best efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; ~~provided,~~ provided that no such supplement, amendment or filing will be required during a Blackout ~~Period~~Period or during such periods when SEC rules or staff guidance prohibit such Registration Statement from being Available. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders of Registrable Securities to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 3, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout Period if such holder or Beneficial Owner has specified in writing to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s address, contact and fax number information. No sales may be made under the applicable Registration Statement during any Blackout ~~Period (with respect to clause (ii) of the definition thereof, of which the holders of Registrable Securities have or are deemed to have received notice)~~Period. In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial officer, general counsel or treasurer of the Company confirming that the conditions described in ~~clause (ii) of~~ the definition of Blackout Period are met, which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period and shall include a reasonably detailed description of the event and/or reason for the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof shall~~ will be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Registration Date shall be considered a Blackout Period ~~described in clause (ii) of the definition thereof~~ and subject to the limitations ~~therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period~~ described in ~~clause (i) of~~ the definition ~~thereof. For avoidance~~ of ~~doubt~~Blackout Period, ~~upon expiration of a Blackout Period described in clause (i) of~~ unless the ~~definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein~~Registration Statement is otherwise prohibited from being Available by an applicable SEC rule or staff guidance. (b) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities delivers a notice to the Company (a “Take-Down Notice”) stating that it, together with any other ~~holder of Registrable Securities~~Persons, intend to sell at least $~~75,000,000~~ 5,000,000 in aggregate of Registrable Securities held by such holder and such other ~~holders (~~Persons; provided that, if the ~~holders of Registrable Securities~~ Purchasers and their Affiliates do not collectively own at least $~~75,000,000~~ 5,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by them (but such amount may not in any case be less than $~~25,000,000~~ 5,000,000 collectively of Registrable Securities), in each case, pursuant to the Registration Statement, then, the Company shall amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten Offering. In connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in first sentence above, and where the Take-Down Notice contemplates marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters, the Company will use reasonable best efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located). The holder of Registrable Securities that delivered the applicable Take-Down Notice shall select the underwriter(s) for ~~the~~ each Underwritten Offering; provided that the managing underwriter(s) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter) of a marketed Underwritten Offering shall be reasonably acceptable to the Company. The Company shall select the counsel for the managing underwriter(s); provided that such counsel shall be reasonably acceptable to the underwriter(s) and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by such holder to the underwriters in such Underwritten Offering. Such holder shall reasonably determine the timing of any such registration and sale. Such holder shall determine the applicable underwriting discount and other financial terms, and ~~such holder~~ the holders of the Registrable Securities sold in the Underwritten Offering shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten Offering. Without the consent of the ~~applicable~~ holder of Registrable Securities ~~subject to an Underwritten Offering~~that delivered the applicable Take-Down Notice, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities. (c) ~~Notwithstanding anything herein~~ Subject to Section 5.02(d), if the ~~contrary~~Company proposes to file a Registration Statement for equity securities or securities convertible into equity securities, whether on its own behalf or in connection with the exercise of any registration rights by any holder of registrable securities (other than (i) if a registration relating solely to an employee benefit plan or employee stock plan, a dividend reinvestment plan, or a merger or a consolidation, (ii) a registration on Form S-4 or any successor form, (iii) a registration on Form S-8 or any successor form, or (iv) any amendments or supplements to a Registration Statement previously filed by the Company with the SEC), then the Company shall give prompt notice (the “Initial Notice”), no later than the date that is twenty (20) days prior to the intended filing date of such Registration Statement, to the holders of Registrable Securities, and the holders of Registrable Securities ~~engage or propose~~ shall be entitled to ~~engage~~ include in ~~a “distribution” (as defined in Regulation M under~~ such Registration Statement the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $75,000,000 of Registrable Securities held by them. The Initial Notice shall offer the holder of Registrable Securities the right, subject to Section 5.02(d) (the “Piggyback Registration Rights”), to register such number of shares of Registrable Securities as each such holders may request and shall set forth (~~provided that~~A) the anticipated filing date of such Registration Statement and (B) the aggregate number of Registrable Securities that is proposed to be included in such Registration Statement. Subject to Section 5.02(d), ~~if collectively~~ the Company shall include in such Registration Statement such Registrable Securities for which it has received written requests to register within ten (10) days after the Initial Notice has been given. (d) If a registration pursuant to Section 5.02(b) or Section 5.02(c) involves an Underwritten Offering and the managing underwriter(s) of such proposed Underwritten Offering advises the Company or the holders of Registrable Securities that the total securities that the holders of Registrable Securities and ~~their Affiliates do not own at least $75,000,000 of Registrable Securities, they shall be permitted~~ any other Persons intend to ~~engage~~ include in such ~~distribution with respect to all~~ offering, or that the inclusion of certain holders of the Registrable Securities in such offering, would be reasonably likely to adversely affect the price, timing or distribution of the securities offered in such offering, then the number of securities proposed to be included in such registration shall be allocated among the Company, the holders of Registrable Securities and the holders of other registrable securities in such offering, such that the number of securities that each such Person shall be entitled to sell in the Underwritten Offering shall be included in the following order: (i) in the case of an exercise of any registration rights by holders of Registrable Securities pursuant to Section 5.02(b): (i) first, the securities held by ~~them~~ the Person(s) exercising such registration rights pursuant to Section 5.02(b), pro rata based upon the number of Registrable Securities requested to be registered by each such Person in connection with such registration; (~~for so long as they hold collectively at least $25,000,000~~ ii) second, the securities held by other Person(s), if any, validly exercising demand registration rights, pro rata based upon the number of Registrable Securities requested to be registered by each such Person in connection with such registration; and (iii) third, securities to be issued and sold by the Company in such registration; (ii) In the case of an exercise of registration rights by Persons other than the holders of Registrable Securities: (i) first, the securities held by such other Person(s)), pro rata based upon the number of registrable securities requested to be registered by each such Person in connection with such registration; (ii) second, the securities held by holders of Registrable Securities exercising their Piggyback Registration Rights, pro rata based upon the number of Registrable Securities requested to be registered by each such Person in connection with such registration; and (iii) third, securities to be issued and sold by the Company in such registration; and (iii) in the case of any other registration: (i) first, the securities to be issued and sold by the Company in such registration; and (ii) second, the securities held by holders of Registrable Securities exercising their Piggyback Registration Rights and any other holders of registrable securities validly exercising their piggyback registration rights, pro rata based upon the number of securities requested to be registered by each such Person in connection with such registration. (de) In connection with a distribution of Registrable Securities in which the holders of Registrable Securities are selling an aggregate of at least $~~200,000,000~~ 5,000,000 of Registrable Securities, the Company shall, to be the extent requested by managing underwriter(s) of such a distribution, be subject to a restricted period of the same length of time as such holder agrees with the managing underwriter(s) (but not to exceed 90 days) during which the Company may not offer, sell or grant any option to purchase Company Common Stock ~~(in the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock)~~ and any debt securities ~~(in the case of an offering of debt securities)~~ of the ~~Company, subject to customary carve-outs that include, but are not limited to, (i)~~ Company other than issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock plans and (ii) in connection with acquisitions, joint ventures and other strategic transactions (subject to, in the case of this clause (ii), a limit not to exceed 10% of the Company’s then outstanding Company Common Stock)plans.

Appears in 1 contract

Samples: Investment Agreement (Inspirato Inc)

Registration Limitations and Obligations. ~~(a)~~ a. Subject to Section 25.01, the Company will use reasonable efforts to prepare such supplements or amendments (including a post-effective ~~amendment~~amendments), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; ~~provided,~~ provided that no such supplement, amendment or filing will be required during a Blackout Period. In order to facilitate the Company’s determination of whether to initiate a Blackout Period, the Purchaser shall give the Company notice of a proposed sale of Registrable Securities pursuant to the Registration Statement at least two (2) Business Days (or, if two (2) Business Days’ notice is not practicable, one (1) Business Day) prior to the proposed date of sale (which notice shall not bind the Purchaser to make any sale). b. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders of Registrable Securities to defer filing a Registration Statement and suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 35.02, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout ~~Period~~ Period, or the certificate described in the following sentence , if such holder or Beneficial Owner has specified in writing to the Company for purposes of receiving such notice such holder’s or Beneficial Owner~~’s address,~~ ’ s address and contact ~~and fax number~~ information. No sales may be made under the applicable Registration Statement during any Blackout ~~Period (with respect to clause (ii) of the definition thereof, of which the holders of Registrable Securities have or are deemed to have received notice)~~Period. In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial officer, general counsel or treasurer of the Company confirming that the conditions described in clause (ii) of the definition of Blackout Period are met, which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective ~~amendment~~amendments, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof~~ shall be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Target Registration Date shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. ~~(b) At any time that a Registration Statement is effective and prior~~ c. Notwithstanding anything to the Registration Termination Date, if a holder of Registrable Securities delivers a notice to the Company (a “Take-Down Notice”) stating that it, together with any other holder of Registrable Securities, intend to sell at least $75,000,000 contrary in aggregate of Registrable Securities held by such holder and such other holders (provided that, if the holders of Registrable Securities and their Affiliates do not collectively own at least $75,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by them (but such amount may not in any case be less than $25,000,000 collectively of Registrable Securities), in each case, pursuant to the Registration Statement, thenthis Agreement, the Company shall ~~amend~~ not have any obligation to prepare any prospectus supplement, participate in any due diligence, execute any agreements or ~~supplement~~ certificates or deliver legal opinions (other than customary de-legending certificates and opinions or any customary Exhibit 5 opinion required in connection with the initial filing of the Registration ~~Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available~~ Statement) or obtain comfort letters in ~~order to enable such Registrable Securities to be distributed in an Underwritten Offering. In~~ connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in first sentence above, and where the Take-Down Notice contemplates marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters, the Company will use reasonable efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside sales of the city in which they are primarily located). The holder of Registrable Securities that delivered the applicable Take-Down Notice shall select the underwriter(s) for the Underwritten Offering; provided that the managing underwriter(s) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter) shall be reasonably acceptable to the Company. The Company shall select the counsel for the managing underwriter(s); provided that such counsel shall be reasonably acceptable to the underwriter(s) and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by such holder to the underwriters in such Underwritten Offering. Such holder shall reasonably determine the timing of any such registration and sale. Such holder shall determine the applicable underwriting discount and other financial terms, and such holder of the Registrable Securities sold in the Underwritten Offering shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten Offering. Without the consent of the applicable holder of Registrable Securities subject to an Underwritten Offering, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities. (c) Notwithstanding anything herein to the contrary, (i) if holders of Registrable Securities engage or propose to engage in a “distribution” (as defined in Regulation M under the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $75,000,000 of Registrable Securities held by such holders (provided that, if collectively the holders of Registrable Securities and their Affiliates do not own at least $75,000,000 of Registrable Securities, they shall be permitted to engage in such distribution with respect to all of the Registrable Securities held by them (for so long as they hold collectively at least $25,000,000 of Registrable Securities)). (d) In connection with a distribution of Registrable Securities in which the holders of Registrable Securities are selling an aggregate of at least $200,000,000 of Registrable Securities, the Company shall, to be extent requested by managing underwriter(s) of such a distribution, be subject to a restricted period of the same length of time as such holder agrees with the managing underwriter(s) (but not to exceed 90 days) during which the Company may not offer, sell or grant any option to purchase Company Common Stock ~~(in~~ under the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock) and any debt securities (in the case of an offering of debt securities) of the Company, subject to customary carve-outs that include, but are not limited to, (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock plans and (ii) in connection with acquisitions, joint ventures and other strategic transactions (subject to, in the case of this clause (ii), a limit not to exceed 10% of the Company’s then outstanding Company Common Stock)Registration Statement.

Appears in 1 contract

Samples: Investment Agreement (Eos Energy Enterprises, Inc.)

Appears in 1 contract

Samples: Investment Agreement (Groupon, Inc.)

Appears in 1 contract

Samples: Investment Agreement (Inspirato Inc)

Appears in 1 contract

Samples: Investment Agreement (Invitae Corp)

Registration Limitations and Obligations. (a) Subject to Section 25.01, the Company will use reasonable efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; provided, that no such supplement, amendment or filing will be required during a Blackout Period. In order to facilitate the Company’s determination of whether to initiate a Blackout Period, each Purchaser shall give the Company notice of a proposed sale of Registrable Securities pursuant to the Registration Statement at least two (2) Business Days (or, if two Business Days is not practicable, one (1) Business Day) prior to the proposed date of sale (which notice shall not bind such Purchaser to make any sale). (b) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders of Registrable Securities to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 35.02, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout ~~Period~~ Period, or the certificate described in the following sentence, if such holder or Beneficial Owner has specified in writing (including by electronic mail) to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s ~~address~~address (including electronic mail), contact and fax number information. No sales may be made under the applicable Registration Statement during any Blackout ~~Period (with respect to clause (ii) of the definition thereof, of which the holders of Registrable Securities have or are deemed to have received notice)~~Period. In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial ~~officer,~~ officer or general counsel ~~or treasurer~~ of the Company confirming that the conditions described in ~~clause (ii) of~~ the definition of Blackout Period are met (but which certificate need not specify the nature of the event causing such conditions to have been met), which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof~~ shall be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Target Registration Date shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (bc) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities (an “Initiating Holder”) delivers a notice to the Company (a “Take-Down Notice”) stating that ~~it, together with any other holder of Registrable Securities, intend~~ it intends to sell at least $75,000,000 ~~in aggregate~~ of Registrable Securities held by such holder ~~and such other holders~~ (provided that, if ~~the holders of Registrable Securities~~ a Purchaser and ~~their~~ its Affiliates do not ~~collectively~~ own at least $75,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by them (but such amount may not in any case be less than $25,000,000 ~~collectively~~ of Registrable Securities)), in each case, pursuant to the Registration Statement, then, the Company shall (i) amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten Offering (subject to Section 5.02(b)) and (ii)(x) in the case of an Underwritten Offering for which the Initiating Holder is a member of the Xxxx Group or the Silver Lake Group, within one (1) Business Day of receipt of the Take-Down Notice and confirmation of such receipt by the treasurer or chief financial officer of the Company and by counsel to the Company, deliver a written notice (a “Participation Notice”) of any such request to all other holders of Registrable Securities that are members of the Xxxx Group or the Silver Lake Group (the “Eligible Participation Holders”), which Participation Notice shall offer each such holder the opportunity to include in such registration that number of Registrable Securities of the same type (i.e., Notes or Company Common Stock) to be offered by the Initiating Holder as each such holder (a “Participating Holder”) may request. The Company shall include in such registration all such Registrable Securities with respect to which the Company has received from a holder entitled to receive a Participation Notice pursuant to the preceding sentence written requests for inclusion therein within (i) in the case of an Overnight Underwritten Offering, one (1) Business Day after the date the Participation Notice was delivered and confirmed received by the treasurer or chief financial officer of the Company and by counsel to the Company and (ii) in the case of a Marketed Underwritten Offering, three (3) Business Days after the date the Participation Notice was delivered; provided, that each Selling Holder will retain the right to withdraw their Registrable Securities from such registration in writing to the underwriters prior to the pricing of the applicable offering. In connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in the first sentence ~~above,~~ above and ~~where~~ the Take-Down Notice contemplates ~~marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters~~a Marketed Underwritten Offering, the Company will use reasonable efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located). ~~The holder~~ A Majority in Interest of ~~Registrable Securities that delivered~~ Selling Holders shall have the ~~applicable Take-Down Notice shall~~ right hereunder to, in its sole discretion: (i) select the underwriter(s) for ~~the~~ each Underwritten Offering~~; provided that the managing underwriter(s~~, (ii) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter) shall be reasonably acceptable to the Company. The Company shall select the counsel for the managing underwriter(s); provided that such counsel shall be reasonably acceptable to the underwriter(s) and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by ~~such holder~~ the Selling Holders to the underwriters in such Underwritten Offering~~. Such holder shall reasonably~~ , as well as any other financial terms, (iii) determine the timing of any such registration and ~~sale. Such holder shall~~ sale and (iv) determine the ~~applicable underwriting discount and~~ total number of Registrable Securities that can be included in such Underwritten Offering in consultation with the managing underwriters (collectively, the “Offering Terms”); provided, that the Initiating Holder shall consult with each other ~~financial terms, and such holder~~ Participating Holder (other than any Participating Holder that is not a member of the ~~Registrable Securities sold~~ Silver Lake Group or the Xxxx Group) in respect of the ~~Underwritten~~ Offering Terms. Each Selling Holder shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten ~~Offering~~Offering for the Registrable Securities sold by such Selling Holder. Without the consent of ~~the applicable holder~~ a Majority in Interest of ~~Registrable Securities subject to an Underwritten Offering~~Selling Holders, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable Securities of the type (i.e., Notes, Other Notes or Company Common Stock) offered by the Initiating Holder in such Underwritten Offering. (d) If the managing underwriter or underwriters of any firm commitment Underwritten Offering advise the Selling Holders in writing that, in their view, the total amount of Registrable Securities proposed to be sold in such Underwritten Offering (including, without limitation, Registrable Securities proposed to be included by any Participating Holder) exceeds the largest amount (the “Orderly Sale Amount”) that can be sold in an orderly manner in such Underwritten Offering within a price range acceptable to the Majority in Interest of Selling Holders, then there shall be included in such firm commitment Underwritten Offering an amount of Registrable Securities not exceeding the Orderly Sale Amount, and such included amount of Registrable Securities shall be allocated pro rata among the Selling Holders on the basis of the number and type of Subject Securities then proposed to be sold by the Xxxx Group in relation to the aggregate number and type of Subject Securities then proposed to be sold by the Silver Lake Group (e.g., if Notes are being offered and sold, the pro rata amounts will be calculated based on the aggregate principal amount of Notes proposed to be sold without regard to shares of Company Common Stock or Other Notes Beneficially Owned by the Xxxx Group or the Silver Lake Group). (e) If requested by the managing underwriter of an Underwritten Offering for which a member of the Xxxx Group or a member of the Silver Lake Group is the Initiating Holder, no Eligible Participation Holder or Initiating Holder shall offer for sale (including by short sale), grant any option for the purchase of, or otherwise transfer (whether by actual disposition or effective economic disposition due to cash settlement, derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of the Registrable Securities or otherwise), any Notes or Company Common Stock (or interests therein) or securities convertible into or exchangeable for Notes or Company Common Stock without the prior written consent of such managing underwriter for a period designated by such managing underwriter in writing to the Eligible Participation Holders and the Initiating Holder, which shall begin the earlier of the date of the underwriting agreement and the commencement of marketing efforts, and shall not in any event last longer than sixty (60) days following such effective date (such period, a “Lock-Up Period”). If requested by the managing underwriter of any such Underwritten Offering, each Eligible Participation Holder shall execute a separate agreement to the foregoing effect; provided, that each Eligible Participation Holder shall negotiate its respective lock-up agreement; provided, further, that if any such lock-up agreement (i) provides for exceptions from any restrictions contained therein, such exceptions shall automatically apply equally to each Eligible Participation Holder or (ii) is terminated or waived in whole or in part for any Eligible Participation Holder, such termination or waiver shall automatically apply to each Eligible Participation Holder. Each lock-up agreement shall permit, and this Section 5.02(e) shall be deemed to permit, transfers pursuant to the terms of Permitted Loans and other customary lock-up exceptions, including for gifts, distributions and other transfers not for value (and including in respect of customary charitable donations substantially contemporaneously with distribution to the donor, free of further lock-up agreement transfer restrictions by the donee, by a Selling Holder or its direct or indirect distributees). The obligations of any person under this Section 5.02(e) are not in limitation of lock-up or transfer restrictions that may otherwise apply to any Registrable Securities. (cf) In addition to the registration rights provided in Section 5.02(c), holders of the Notes shall have analogous rights to sell such securities in a marketed offering under Rule 144A under the Securities Act through one or more initial purchasers on a firm-commitment basis, using procedures that are substantially equivalent to those specified in Section 5.02 and Section 5.03. The Company agrees to use its reasonable efforts to cooperate to effect any such sales under such Rule 144A. Nothing in this Section 5.02(f) shall impose any additional or more burdensome obligations on the Company than would apply under Section 5.02 and Section 5.03, in each case, mutatis mutandis in respect of a registered Underwritten Offering, or require that the Company take any actions that it would not be required to take in an Underwritten Offering of such Notes. (g) Notwithstanding anything herein to the contrary, (i) if holders of Registrable Securities engage or propose to engage in a “distribution” (as defined in Regulation M under the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $75,000,000 of Registrable Securities held by such holders (provided that, if collectively the ~~holders of Registrable Securities~~ Purchasers and their Affiliates do not own at least $75,000,000 of Registrable Securities, they shall be permitted to engage in such distribution with respect to all of the Registrable Securities held by them (for so long as they hold collectively at least $25,000,000 of Registrable Securities)). (dh) In connection with a distribution of Registrable Securities in which ~~the holders~~ a holder of Registrable Securities ~~are~~ is selling ~~an aggregate of~~ at least $200,000,000 of Registrable Securities, the Company shall, to be extent requested by the managing underwriter(s) of such a distribution, be subject to a restricted period of the same length of time as such holder agrees with the managing underwriter(s) (but not to exceed 90 30 days) during which the Company may not offer, sell or grant any option to purchase Company Common Stock (in the case of an offering of Company Common Stock or securities convertible or exchangeable for Company Common Stock) and any debt securities (in the case of an offering of debt securities) of the Company, subject to customary carve-outs that include, but are not limited to, (i) issuances pursuant to the Company’s employee or director stock plans and issuances of shares upon the exercise of options or other equity awards under such stock plans and (ii) in connection with acquisitions, joint ventures and other strategic ~~transactions (subject to, in the case of this clause (ii), a limit not to exceed 10% of the Company’s then outstanding Company Common Stock)~~transactions.

Appears in 1 contract

Samples: Investment Agreement (Symantec Corp)

Registration Limitations and Obligations. (a) Subject to Section 25.01, the Company will use reasonable efforts to prepare such supplements or amendments (including a post-effective amendment), if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the period for which such Registration Statement is, or is required pursuant to this Agreement to be, effective; provided, that no such supplement, amendment or filing will be required during a Blackout Period. In order to facilitate the Company’s determination of whether to initiate a Blackout Period, the Purchaser shall give the Company notice of a proposed sale of Registrable Securities pursuant to the Registration Statement at least two (2) Business Days (or, if two Business Days is not practicable, one (1) Business Day) prior to the proposed date of sale (which notice shall not bind the Purchaser to make any sale). (b) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the holders of Registrable Securities, to require such holders of Registrable Securities to suspend the use of the prospectus for sales of Registrable Securities under the Registration Statement during any Blackout Period; provided, for purposes of this Section 35.02, the Company shall only be obligated to provide written notice to any holder or Beneficial Owner of Registrable Securities of any such Blackout ~~Period~~ Period, or the certificate described in the following sentence, if such holder or Beneficial Owner has specified in writing (including electronic mail) to the Company for purposes of receiving such notice such holder’s or Beneficial Owner’s ~~address~~address (including electronic mail), contact and fax number information. No sales may be made under the applicable Registration Statement during any Blackout ~~Period (with respect to clause (ii) of the definition thereof, of which the holders of Registrable Securities have or are deemed to have received notice)~~Period. In the event of a Blackout ~~Period under clause (ii) of the definition thereof~~Period, the Company shall (x) deliver to the holders of Registrable Securities a certificate signed by the chief executive officer, chief financial ~~officer,~~ officer or general counsel ~~or treasurer~~ of the Company confirming that the conditions described in ~~clause (ii) of~~ the definition of Blackout Period are met (but which certificate need not specify the nature of the event causing such conditions to have been met), which certificate shall contain an approximation of the anticipated delay, and (y) notify each holder of Registrable Securities promptly upon each of the commencement and the termination of each Blackout Period, which notice of termination shall be delivered to each holder of Registrable Securities no later than the close of business of the last day of the Blackout Period. In connection with the expiration of any Blackout Period and without any further request from a holder of Registrable Securities, the Company to the extent necessary and as required by applicable law shall as promptly as reasonably practicable prepare supplements or amendments, including a post-effective amendment, to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that the Registration Statement will be Available. A Blackout Period ~~described in clause (ii) of the definition thereof~~ shall be deemed to have expired when the Company has notified the holders of Registrable Securities that the Blackout Period is over and the Registration Statement is Available. Notwithstanding anything in this Agreement to the contrary, the absence of an Available Registration Statement at any time from and after the Target Registration Date shall be considered a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein, except to the extent such absence occurs during (and does not extend beyond) a Blackout Period described in clause (i) of the definition thereof. For avoidance of doubt, upon expiration of a Blackout Period described in clause (i) of the definition thereof, any additional duration of a Blackout Period will be deemed to a Blackout Period described in clause (ii) of the definition thereof and subject to the limitations therein. (bc) At any time that a Registration Statement is effective and prior to the Registration Termination Date, if a holder of Registrable Securities (an “Initiating Holder”) delivers a notice to the Company (a “Take-Down Notice”) stating that ~~it, together with any other holder of Registrable Securities, intend~~ it intends to sell at least $~~75,000,000 in aggregate~~ 25,000,000 of Registrable Securities held by such holder ~~and such other holders~~ (provided that, if ~~the holders of Registrable Securities~~ a Purchaser and ~~their~~ its Affiliates do not ~~collectively~~ own at least $~~75,000,000~~ 25,000,000 of Registrable Securities, they shall be permitted to deliver a Take-Down Notice to sell all of the Registrable Securities held by ~~them (but such amount may not in any case be less than $25,000,000 collectively of Registrable Securities~~them), in each case, pursuant to the Registration Statement, then, the Company shall (i) amend or supplement the Registration Statement as may be necessary and to the extent required by law so that the Registration Statement remains Available in order to enable such Registrable Securities to be distributed in an Underwritten Offering (subject to Section 5.02(b)) and (ii) (x) within one (1) Business Day of receipt of the Take-Down Notice and confirmation of such receipt by the treasurer or chief financial officer of the Company and by counsel to the Company, deliver a written notice (a “Take-Down Participation Notice”) of any such request to all other holders of Registrable Securities (the “Eligible Participation Holders”), which Take-Down Participation Notice shall offer each such holder the opportunity to include in such registration that number of Registrable Securities of the same type (i.e., Notes or Company Common Stock) to be offered by the Initiating Holder as each such holder (a “Participating Holder”) may request. The Company shall include in such registration all such Registrable Securities with respect to which the Company has received from a holder entitled to receive a Take-Down Participation Notice pursuant to the preceding sentence written requests for inclusion therein within (i) in the case of an Underwritten Offering that is not a Marketed Underwritten Offering, one (1) Business Day after the date the Take-Down Participation Notice was delivered and confirmed received by the treasurer or chief financial officer of the Company and by counsel to the Company and (ii) in the case of a Marketed Underwritten Offering, three (3) Business Days after the date the Take-Down Participation Notice was delivered; provided, that each Selling Holder will retain the right to withdraw their Registrable Securities from such registration in writing to the underwriters prior to the pricing of the applicable offering. In connection with any Underwritten Offering of Registrable Securities for which a holder delivers a Take-Down Notice and satisfies the dollar thresholds set forth in the first sentence ~~above,~~ of this Section 5.02(c) and ~~where~~ the Take-Down Notice contemplates ~~marketing efforts not to exceed twenty-four (24) hours by the Company and the underwriters~~a Marketed Underwritten Offering, the Company will use reasonable efforts to cooperate and make its senior officers available for participation in such marketing efforts (which marketing efforts will not, for the avoidance of doubt, include a “road show” requiring such officers to travel outside of the city in which they are primarily located). ~~The holder~~ A Majority in Interest of ~~Registrable Securities that delivered~~ Selling Holders shall have the ~~applicable Take-Down Notice shall~~ right hereunder to, in their sole discretion: (i) select the underwriter(s) for ~~the~~ each Underwritten Offering~~; provided that the managing underwriter(s~~, (ii) (if there is only one underwriter, such underwriter shall be deemed to be the managing underwriter) shall be reasonably acceptable to the Company. The Company shall select the counsel for the managing underwriter(s); provided that such counsel shall be reasonably acceptable to the underwriter(s) and the holder of Registrable Securities that delivered the applicable Take-Down Notice. Such holder shall determine the pricing of the Registrable Securities offered pursuant to any such Registration Statement, including the underwriting discount and fees payable by ~~such holder~~ the Selling Holders to the underwriters in such Underwritten Offering~~. Such holder shall reasonably~~ , as well as any other financial terms, (iii) determine the timing of any such registration and ~~sale. Such holder shall~~ sale and (iv) determine the ~~applicable underwriting discount and~~ total number of Registrable Securities that can be included in such Underwritten Offering in consultation with the managing underwriters (collectively, the “Offering Terms”); provided, that the Initiating Holder shall consult with each other ~~financial terms, and such holder~~ Participating Holder (other than any Participating Holder that is not a member of the ~~Registrable Securities sold~~ Silver Lake Group) in respect of the ~~Underwritten~~ Offering Terms. Each Selling Holder shall be solely responsible for all such discounts and fees payable to such underwriters in such Underwritten ~~Offering~~Offering for the Registrable Securities sold by such Selling Holder. Without the consent of ~~the applicable holder~~ a Majority in Interest of ~~Registrable Securities subject to an Underwritten Offering~~Selling Holders, no Underwritten Offering pursuant to this Agreement shall include any securities other than Registrable ~~Securities.~~ Securities of the type (ci.e., Notes, Warrants or Company Common Stock) ~~Notwithstanding anything herein to~~ offered by the contrary, (i) if holders of Registrable Securities engage or propose to engage in a “distribution” (as defined in Regulation M under the Exchange Act) of Registrable Securities, such holders shall discuss the timing of such distribution with the Company reasonably prior to commencing such distribution, and (ii) such distribution must not be for less than $75,000,000 of Registrable Securities held by such holders (provided that, if collectively the holders of Registrable Securities and their Affiliates do not own at least $75,000,000 of Registrable Securities, they shall be permitted to engage Initiating Holder in such ~~distribution with respect to all of the Registrable Securities held by them (for so long as they hold collectively at least $25,000,000 of Registrable Securities))~~Underwritten Offering. (d) ~~In connection with a distribution~~ If the managing underwriter or underwriters of any firm commitment Underwritten Offering advise the Selling Holders in writing that, in their view, the total amount of Registrable Securities proposed to be sold in ~~which~~ such Underwritten Offering (including, without limitation, Registrable Securities proposed to be included by any Participating Holder) exceeds the ~~holders~~ largest amount (the “Orderly Sale Amount”) that can be sold in an orderly manner in such Underwritten Offering within a price range acceptable to the Majority in Interest of Selling Holders, then there shall be included in such firm commitment Underwritten Offering an amount of Registrable Securities ~~are selling an aggregate of at least $200,000,000~~ not exceeding the Orderly Sale Amount, and such included amount of Registrable ~~Securities~~Securities shall be allocated pro rata among the Selling Holders on the basis of the number and type of Subject Securities then proposed to be sold by the respective Selling Holders (e.g., if Notes are being offered and sold, the ~~Company shall,~~ pro rata amounts will be calculated based on the aggregate principal amount of Notes proposed to be ~~extent~~ sold without regard to shares of Company Common Stock Beneficially Owned by the respecting Selling Holders). (e) If requested by the managing ~~underwriter(s)~~ underwriter of ~~such~~ an Underwritten Offering for which a ~~distribution, be subject to a restricted period~~ member of the ~~same length of time as~~ Silver Lake Group is the Initiating Holder, unless such ~~holder agrees with the managing underwriter(s)~~ Initiating Holder otherwise agrees, no Eligible Participation Holder or Initiating Holder shall offer for sale (~~but not to exceed 90 days) during which the Company may not offer~~including by short sale), ~~sell or~~ grant any option for the purchase of, or otherwise transfer (whether by actual disposition or effective economic disposition due to ~~purchase~~ cash settlement, derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of the Registrable Securities or otherwise), any Notes or Company Common Stock (~~in the case of an offering of~~ or interests therein) or securities convertible into or exchangeable for Notes or Company Common Stock ~~or securities convertible or exchangeable~~ without the prior written consent of such managing underwriter for ~~Company Common Stock)~~ a period designated by such managing underwriter in writing to the Eligible Participation Holders and ~~any debt securities (in~~ the ~~case of an offering of debt securities)~~ Initiating Holder, which shall begin the earlier of the ~~Company~~date of the underwriting agreement and the commencement of marketing efforts, ~~subject~~ and shall not in any event last longer than sixty (60) days following such effective date. If requested by the managing underwriter of any such Underwritten Offering, each Eligible Participation Holder shall execute a separate agreement to ~~customary carve~~the foregoing effect; provided, that each Eligible Participation Holder shall negotiate its respective lock-~~outs~~ up agreement; provided, further, that ~~include, but are not limited to,~~ if any such lock-up agreement (i) ~~issuances~~ provides for exceptions from any restrictions contained therein, such exceptions shall automatically apply equally to each Selling Holder or (ii) is terminated or waived in whole or in part for any Selling Holder, such termination or waiver shall automatically apply to each other Selling Holder. Each lock-up agreement shall permit, and this Section 5.02(e) shall be deemed to permit, transfers pursuant to the ~~Company’s employee or director stock plans and issuances~~ terms of ~~shares upon the exercise of options or other equity awards under such stock plans and (ii) in connection with acquisitions~~Permitted Loans, ~~joint ventures~~ Permitted Debt Financing Transactions and other ~~strategic transactions~~ customary lock-up exceptions, including for gifts, distributions and other transfers not for value (~~subject to~~and including in respect of customary charitable donations substantially contemporaneously with distribution to the donor, free of further lock-up agreement transfer restrictions by the donee, by a Selling Holder or its direct or indirect distributees). The obligations of any person under this Section 5.02(e) are not in limitation of lock-up or transfer restrictions that may otherwise apply to any Registrable Securities. (f) In addition to the ~~case of this clause (ii~~registration rights provided in Section 5.02(c), ~~a limit not to exceed 10%~~ holders of the ~~Company’s then outstanding Company Common Stock).~~Notes shall have analogous rights to sell such securities in a marketed offering under Rule 144A under the Securities Act through one or more initial purchasers on a firm-commitment basis, using procedures that are substantially equivalent to those specified in Section 5.02 and

Appears in 1 contract

Samples: Investment Agreement (Zuora Inc)

Appears in 1 contract

Samples: Securities Purchase Agreement (MDC Partners Inc)

Appears in 1 contract

Samples: Investment Agreement (Pacific Biosciences of California, Inc.)

Common use of Registration Limitations and Obligations Clause in Contracts