Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, the Company shall receive a written request from Initiating Holders that the Company effect any registration with respect to shares of Registrable Securities, the Company will: (i) promptly give written notice of the proposed registration to all other Holders; and (ii) as soon as practicable, use commercially reasonable efforts to effect such registration as part of a firm commitment underwritten public offering (including, without limitation, appropriate qualification under applicable state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering a written notice to such effect to the Company within twenty (20) days after the date of delivery of such written notice by the Company pursuant to subsection (i) above. Notwithstanding the foregoing, the Company shall not be obligated to take any action to effect or complete any such registration pursuant to this Section 3.1: (A) if the Registrable Securities proposed to be registered may be registered immediately on Form S-3 pursuant to Section 3.3 below; (B) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000; (C) during the period that begins sixty (60) days before the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; (D) after the Company has effected two (2) registrations pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective; (E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or (F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (F), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders.
Appears in 3 contracts
Samples: Investors' Rights Agreement, Investors’ Rights Agreement (Force10 Networks Inc), Investors’ Rights Agreement (Force10 Networks Inc)
Requested Registration. (a) If at any time after the earlier of Company shall receive from the Initiating Holders a written request that the Company file a registration statement for (i) three (3) years after the date at least 75% of the Agreement Registrable Securities, (ii) at least 60% of the Series E Registrable Securities, or (iii) Novation Registrable Securities having a current market value of at least $30 million, and in the case of clause (i) or (ii) one the aggregate gross proceeds of which registration would equal or exceed $20,000,000 (1) year after the consummation of the Initial Public Offeringany such notice, the Company shall receive a written request from Initiating Holders that the Company effect any registration with respect to shares of Registrable Securitiesan "INITIATION NOTICE"), then the Company will:
(iA) promptly within ten days of the receipt by the Company of the Initiation Notice, give written notice of the proposed registration registration, qualification or compliance to all other HoldersHolders (the notice in this Section 4.1(a)(i) and in Section 4.2(a)(i), each called the "REGISTRATION NOTICE"); and
(iiB) use its best efforts to effect, as soon as practicablepracticable and in any event within ninety (90) days after receipt of the Initiation Notice, use commercially reasonable efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) 20 days after receipt of the date of delivery of such written notice by Registration Notice from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; Provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.14.1:
(A1) if Prior to January 24, 2001.
(2) In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered may be registered immediately on Form S-3 pursuant qualify to Section 3.3 belowdo business or to execute a general consent to service of process in effecting such registration, qualification or compliance;
(B3) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate 's estimated date of filing of any registration statement for the securities of the filing ofCompany, and that ends one hundred eighty ending (180except as provided below) days on the date six (6) months immediately following the effective date of, of any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); providedCompany, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D) after the Company has effected two (2) registrations pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, and, provided, further, that the standstill period in this clause (3) including for shall not apply to a registration regarding a transaction described in subsection (a) of Rule 145 as promulgated under the Company’s first registered public offering Securities Act ("RULE 145") or with respect to securities issued or issuable under an employee benefit plan or other similar plan or agreement;
(4) After the Company has effected two (2) such registrations requested by holders of its Common Stock with at least 60% of the Commission whereupon Series E Initiating Holders, three (3) such registrations requested registration shall be accomplished by holders of the Novation Registrable Securities, and two (2) additional registrations pursuant to this Section 3.2 hereof4.1(a), and such registrations have been declared or ordered effective. The Company shall not be obligated to effect more than one such registration requested by the holders of the Novation Registrable Securities in any twelve month period.
(ii5) If the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it isfuture, therefore, essential to defer the filing of such registration statement. In such case, then the Company’s 's obligation to use its commercially reasonable best efforts to register, qualify or comply under this Section 3.1(a) 4.1 shall be deferred one or more times each for a period not to exceed 180 ninety (90) days from the date of receipt of written request from the request to file such registration by such Initiating Holder or Holders; provided, provided however, that the Company may shall not exercise this deferral such right more than once per twelve-in any twelve (12) month period. Subject to the foregoing clauses (A) through (F), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders.
Appears in 3 contracts
Samples: Common Stock and Warrant Agreement (Neoforma Com Inc), Registration Rights Agreement (Vha Inc), Common Stock and Warrant Agreement (Neoforma Com Inc)
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect any registration registration, qualification or compliance with respect to shares of the Registrable Securities, the Company will:
(i) promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicablepracticable and in any event within ninety (90) days after receipt of such written request, use commercially all reasonable efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after receipt of the date of delivery of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.11.5:
(A) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B) unless Prior to six (6) months after the requested registration would have an aggregate offering price effective date of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000the Company’s Initial Public Offering;
(C) during After the Company has effected two (2) such registrations pursuant to this subparagraph 1.5(a), such registration has been declared or ordered effective and the securities offered pursuant to each such registration have been sold; provided that a majority of Registrable Securities requested for inclusion were in fact included in such registration;
(D) During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate of the date of filing of, and that ends ending on a date one hundred eighty (180) days immediately following after the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan)initiated by the Company; provided, however, provided that the Company is actively employing employed in good faith in all reasonable efforts to cause such registration statement to become effective;
(D) after effective and provided further that the Company has effected two (2) registrations Initiating Holders shall be entitled to include Registrable Securities on such registration pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;1.6 hereof; or
(E) within twelve If such registration, qualification or compliance involves securities with an aggregate value less than Ten Million Dollars (12) months after the Company has effected such a registration pursuant to this Section 3.1(a$10,000,000), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (FE), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders; provided, however, that if (i) in the good faith judgment of the board of directors of the Company (the “Board”), such, registration would be detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board, it would be detrimental to the Company for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for up to ninety (90) days after receipt of the request of the Initiating Holders, and provided further, that the Company shall not defer its obligation in this manner more than once in any twelve (12) month period.
Appears in 3 contracts
Samples: Investors' Rights Agreement, Investors’ Rights Agreement (Obalon Therapeutics Inc), Investors’ Rights Agreement (Obalon Therapeutics Inc)
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect any registration registration, qualification or compliance with respect to shares of the Registrable Securities, the Company will:
(i) promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicablepracticable and in any event within ninety (90) days after receipt of such written request, use its commercially reasonable best efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after receipt of the date of delivery of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.1Subsection 2.5:
(A) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B) unless Prior to twelve (12) months after the requested registration would have an aggregate offering price effective date of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000the Company’s initial public offering;
(C) during After the Company has effected two (2) such registrations pursuant to this subparagraph 2.5(a), such registration has been declared or ordered effective and the securities offered pursuant to each such registration have been sold; provided that all Registrable Securities requested for inclusion were in fact included in such registration. The Company shall not be obligated to effect more than two registration statements in any twelve (12) month period;
(D) During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate of the date of filing of, and that ends ending on a date one hundred eighty (180) days immediately following after the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan)initiated by the Company; provided, however, provided that the Company is actively employing employed in good faith in all commercially reasonable best efforts to cause such registration statement to become effective;
(D) after effective and provided further that the Company has effected two (2) registrations pursuant rights of the Initiating Holders to this Section 3.1(a) and such registrations have been declared or ordered effective;include Registrable Securities for registration in the Company’s registration shall be governed by Subsection 2.6 hereof; or
(E) within twelve If such registration, qualification or compliance involves securities with an aggregate value less than Ten Million Dollars (12) months after the Company has effected such a registration pursuant to this Section 3.1(a$10,000,000), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (FE), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders; provided, however, that if (i) in the good faith judgment of the board of directors of the Company (the “Board”), such registration would be seriously detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing (except as provided in clause (D) above) for up to two (2) periods of not more than sixty (60) days each after receipt of the request of the Initiating Holders, and provided further, that the Company shall not defer its obligation in this manner more than once in any twelve-month period.
Appears in 2 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (Syndax Pharmaceuticals Inc)
Requested Registration. The Company shall use its reasonable best efforts to register the sale or distribution by the Holders, on a delayed or continuous basis, of all of the Registrable Securities on a Form S-3 registration statement (aor any successor form to Form S-3) If at any time after (the earlier of (i"Shelf Registration") three (3) years by the date which is 180 days after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, the Company shall receive a written request from Initiating Holders that the Company effect any registration with respect to shares of Registrable Securities, the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, use commercially reasonable efforts to effect such registration as part of a firm commitment underwritten public offering Closing (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations). Once declared effective, the Company shall use its reasonable best efforts to cause (x) the Shelf Registration to remain effective until such time as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of issued in connection with or related to the Series B Purchase Agreement can be resold to the public within any Holder and all three month periods under Rule 144 or Holders joining in such request by delivering a written notice to such another similar exemption under the Securities Act (without giving effect to Rule 144(k)), and (y) the Company within twenty Shelf Registration to be useable by the Holders during the entire relevant period, except that the Shelf Registration may be unuseable (20including by way of notice sent pursuant to Section 10(d)) for an aggregate of 90 days after in any twelve month period (provided, however, that for the period consisting of the first 12 months following the date of delivery of the Shelf Registration is initially declared effective under the Securities Act such written notice 90-day period shall be reduced by the Company number of days the effectiveness of the Shelf Registration was delayed pursuant to subsection clause (i2) abovebelow of this Section). Notwithstanding the foregoing, the The Company shall not be obligated to take any action to effect or complete the Shelf Registration: (1) in any such registration pursuant to this Section 3.1:
(A) if the Registrable Securities proposed to be registered may be registered immediately on Form S-3 pursuant to Section 3.3 below;
(B) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during the period that begins sixty (60) days before the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days immediately following the effective date of, any registration statement pertaining to any securities of particular jurisdiction in which the Company (other than would be required to execute a registration general consent to service of securities process in a Rule 145 transaction effecting such registration, qualification or with respect to an employee benefit plan); provided, however, that compliance unless the Company is actively employing already subject to service in good faith all reasonable efforts to cause such registration statement to become effective;
(D) after jurisdiction and except as may be required by the Company has effected two Securities Act; or (2) registrations pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the Company furnishes shall furnish to the Initiating such Holders a certificate certificate, signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) daysCompany, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed declared effective in the near future and that it isfuture, therefore, essential to defer then the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration date by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (F), which the Company shall file a registration statement covering have the Registrable Securities so requested Shelf Registration effective may be extended by up to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders90 days.
Appears in 2 contracts
Samples: Investor Rights Agreement (Eloyalty Corp), Investor Rights Agreement (Eloyalty Corp)
Requested Registration. (ai) If the Company shall receive from the Initiating Holders at any time after the earlier of six (i6) three (3) years months after the date of the this Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, the Company shall receive a written request from Initiating Holders that the Company effect any registration with respect to shares at least fifty percent (50%) of Registrable the Securities, the Company will:
: (iA) promptly promply give written notice of the proposed registration to all other HoldersInvestors; and
and (iiB) as soon as practicable, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering (including, without limitation, appropriate qualification under applicable state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsthose obligations set forth in Section 3 hereof) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder Investor or Holders Investors joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after the date of delivery of such written notice by the Company pursuant to subsection referenced above is mailed or delivered.
(iii) above. Notwithstanding the foregoing, the The Company shall not be obligated to effect, or to take any action to effect or complete effect, any such registration pursuant to this Section 3.12a:
(A) if in any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the 1933 Act;
(B) unless after the requested Company has initiated one (1) such registration would pursuant to this Section 2a (counting for these purposes only registrations which have an aggregate offering price of all Registrable Securities sought been declared or ordered effective and pursuant to be registered which securities have been sold and registrations which have been withdrawn by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000the Investors as to which the Investors have not elected to bear the registration expenses set forth in Section 5 hereof);
(C) during the period that begins starting with the date sixty (60) days before prior to the Company’s 's good faith estimate of the date of filing of, and that ends ending on a date one hundred eighty (180) days immediately following after the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); providedCompany-initiated registration, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D) after the Company has effected two (2) registrations pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or
(D) including for if the Company’s first Initiating Investors propose to dispose of Securities which may be immediately registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished on Form S-3 pursuant to a request made under Section 3.2 2d hereof, or .
(iiiii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (Ai) through and (Fii), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after the receipt of the request or requests of the Initiating HoldersInvestors; provided, however, that if (A) in the good faith judgment of the Board of Directors of the Company, such registration would be seriously detrimental to the Company and the Board of Directors concludes, as a result, that it is essential to defer the filing of such registration statement, then the Company shall have the right to defer such a filing for the period during which such disclosure would be seriously detrimental, provided that (except as provided in clause (ii) (C) above), the Company may not defer the filing for a period of more than ninety (90) days after receipt of the request of the Initiating Investors, and provided further that the Company shall not defer its obligation in this manner more than once in any twelve (12) month period. The registration statement filed pursuant to the request of the Initiating Investors may, subject to the provisions of this clause (iii) and Section 3p hereof, include other securities of the Company, with respect to which registration rights have been granted, and may include securities of the Company being sold for the account of the Company.
(iv) If any offering pursuant to a Registration Statement pursuant to this Section 2(a) involves an underwritten offering, the right of any Investor to registration pursuant to this Section 2(a) shall be conditioned upon such Investor's participation in such underwriting and the inclusion of such Investor's Securities in the underwriting to the extent provided herein. An Investor may elect to include in such underwriting all or a part of the Securities he or she holds.
(v) If the Company shall request inclusion in any registration pursuant to this Section 2(a) securities sold for its own account, or if any Other Stockholders shall request inclusion in any registration pursuant to this Section 2, the Initiating Investors shall, on behalf of all Investors, offer to include such securities in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Agreement. The Company shall (together with all Investors and Other Stockholders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Investors, but subject to the Company's reasonable approval. Notwithstanding any other provision of this Section 2, if the representative of the underwriters advises the Initiating Investors in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of shares to be included in the underwriting or registration shall be allocated as set forth in Section 3p hereof. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Investors. Any Securities or other securities held by the person so excluded shall also be withdrawn from the registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this clause (v), then the Company shall offer to all Investors who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Investors requesting additional inclusion in accordance with Section 3p hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Intellect Capital Group LLC), Registration Rights Agreement (Photoloft Com)
Requested Registration. (a) If at any time after twelve (12) months following the earlier of (i) three (3) years after the effective date of the Agreement Company’s initial public offering of its Common Stock or (ii) one the second anniversary of the Purchase Agreement: (1) year after Initiating Holders request that the consummation Company file a registration statement for at least 50% of the Initial Public Offering, Registrable Securities or (2) the Company shall receive a written holders of at least 50% of the Registrable Securities request from Initiating Holders that the Company effect any a registration with respect to shares the aggregate proceeds from which would equal or exceed $25,000,000 (net of Registrable Securities, underwriting discounts and commissions) the Company will:
(i) promptly within ten days of the receipt by the Company of such notice, give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicablepracticable and in any event within sixty (60) days of the receipt by the Company of such notice, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) 20 days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.1:
(A1) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B2) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during During the period that begins sixty starting with the date ninety (6090) days before prior to the Company’s good faith estimate estimated date of the filing of, and that ends one hundred eighty ending on the date three (1803) days months immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan, in which case there shall be no such limitation on the Company’s obligation, or with respect to the Company’s first registered public offering of its stock in which case the period shall end on the date six (6) months following the effective date); provided, however, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D3) after After the Company has effected two (2) registrations pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effectiveeffective and the securities offered thereunder have been sold; or
(F4) if If the Company furnishes shall furnish to the Initiating such Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it isfuture, therefore, essential to defer the filing of such registration statement. In such case, then the Company’s obligation to use its commercially reasonable best efforts to register, qualify or comply under this Section 3.1(a) 3.1 shall be deferred one or more times each for a period not to exceed 180 90 days from the date of receipt of written request from the request to file such registration by such Initiating Holder or Holders; provided, provided however, that the Company may shall not exercise this deferral such right more than once per in any twelve-month period. Subject to the foregoing clauses (A1) through (F4), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable and in any event within ninety (90) days after receipt of the request or requests of the Initiating Holders.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Endocyte Inc), Investors’ Rights Agreement (Endocyte Inc)
Requested Registration. (a) If at At any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public OfferingExpiration Date, in case the Company shall receive a written request from Initiating a Holder or Holders that the Company effect any a registration with respect to shares of Registrable Securities, the Company willshall:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, practicable use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering register (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification qualifications under applicable blue sky or other state securities laws laws, and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsfederal government requirements) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such the Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining as are specified in such request by delivering a written notice to such effect to the Company request given within twenty ten (2010) days after the date of delivery receipt of such written notice by the Company pursuant to subsection (i) above. Notwithstanding the foregoing, the Company shall not be obligated to take any action to effect or complete any such registration pursuant to this Section 3.1:
(A) if the Registrable Securities proposed to be registered may be registered immediately on Form S-3 pursuant to Section 3.3 below;
(B) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during the period that begins sixty (60) days before from the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, that the Company is actively employing in good faith all reasonable efforts shall not be obligated to cause such file a registration statement pursuant to become effectivethis Section:
(A) within two hundred seventy (270) days after the effectiveness of a registration statement relating to a registration effected pursuant to this Section 1.3(a) or Section 1.4(a);
(B) in any particular state in which the Company would be required to execute a general consent to service of process in effecting such registration;
(C) in any registration having an aggregate sales price (before deduction of underwriting discounts and commissions) of less than $5,000,000; or
(D) after the Company has effected two (2) such registrations pursuant to this Section 3.1(a1.3(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such ; provided, however, that any registration request which is subsequently withdrawn shall not be deemed to be a registration pursuant to under this Section 3.1(a), and such registration has been declared or ordered effective; or
subsection (FD) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of requesting such registration shall have reimbursed the Company (i) giving notice for all Registration Expenses related to such withdrawn registration. Notwithstanding the foregoing, if at the time of its bona fide intention to effect within sixty (60) dayssuch withdrawal, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (F), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders.Holders have
Appears in 2 contracts
Samples: Registration Rights Agreement (Veritas Software Corp), Registration Rights Agreement (Veritas Software Corp)
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from the Investors holding rights to a majority of the Registrable Securities (“Initiating Holders”) a written request from Initiating Holders that the Company effect any registration registration, qualification or compliance with respect to shares of Registrable Securities, the Company will:
: (i) promptly give written notice of the proposed registration registration, qualification or compliance to all other HoldersInvestors; and
and (ii) as soon as practicable, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder Investor or Holders Investors joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.12:
(A) if in any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate estimated date of the filing of, and that ends one hundred eighty (180) days ending on the date six months immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction transaction, or with respect to an employee benefit plan); provided, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D) after the Company has effected two (2) registrations pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or
(C) including for after the Company’s first registered public offering of its Common Stock with the Commission whereupon Company has effected two such requested registration shall be accomplished registrations in any twelve month period pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one 2, and such registrations have been declared or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month periodordered effective. Subject to the foregoing clauses (A) through (FC), the Company shall cause Technest to prepare and file a registration statement Registration Statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders, but in any event within one hundred eighty (180) days of such request or requests (the “Filing Date”). The Company shall use its best efforts to cause the Registration Statement relating to the Registrable Securities for which a request for registration has been made to become effective within two hundred seventy (270) days after the Filing Date (“Effective Date”). Such Registration Statement shall state that, in accordance with the Securities Act, it also covers such indeterminate number of additional shares of Technest Common Stock as may become issuable to prevent dilution resulting from stock splits, or stock dividends.
Appears in 1 contract
Samples: Registration Rights Agreement (Markland Technologies Inc)
Requested Registration. (a) If at At any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public OfferingExpiration Date, in case the Company shall receive a written request from Initiating a Holder or Holders that the Company effect any registration with respect to shares Registrable Securities if the anticipated aggregate offering price, net of Registrable Securitiesunderwriting discounts and commissions, would exceed $10,000,000, the Company willshall:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, practicable use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering register (including, without limitation, the execution of an undertaking to file post- effective amendments, appropriate qualification qualifications under applicable blue sky or other state securities laws Securities Laws, and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsfederal government requirements) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such the Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining as are specified in such request by delivering a written notice to such effect to the Company request given within twenty ten (2010) days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoing, Company; provided that the Company shall not be obligated to take any action to effect or complete any such file a registration statement pursuant to this Section 3.1section:
(A) if within one hundred twenty (120) days after the Registrable Securities proposed effectiveness of the registration statement relating to be registered may be registered immediately on Form S-3 a registration effected pursuant to this Section 3.3 below1.3(a) or Section 1.4(a);
(B) unless in any particular state in which the requested Company would be required to execute a general consent to service of process in effecting such registration;
(C) in any registration would have having an aggregate offering sales price of all Registrable Securities sought to be registered by all Holders, net (before deduction of underwriting discounts and commissions, exceeding ) of less than $10,000,000;
(C) during the period that begins sixty (60) days before the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;or
(D) after the Company has effected two (2) three such registrations pursuant to this Section 3.1(a1.3(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such ; provided, however, that any registration request which is subsequently withdrawn shall not be deemed to be a registration pursuant to under this Section 3.1(a), and such registration has been declared or ordered effective; or
subsection (FD) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of requesting such registration shall have reimbursed the Company (i) giving notice of its bona fide intention for all Registration Expenses related to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month periodwithdrawn registration. Subject to the foregoing clauses (A) through (FD), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as is practicable after receipt of the request or requests of the Initiating Holders; provided, however, that (i) if the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors it would be detrimental to the Company and its stockholders for such registration statement to be filed within such period, then the Company may defer the filing of such registration statement for a period of not more than sixty (60) days, provided that the Company may not exercise such sixty (60) day hold off more than once during any one hundred and twenty (120) day period, or (ii) if at the time of such request the Company determines it desires to register shares for the account of the Company, then the Company can so notify the Holders who shall then have rights to participate in such registration statement as provided in Section 1.4.
(b) The Holders agree to distribute the Registrable Securities covered by their request by means of an underwriting, using an underwriter or underwriters selected by the Holders and reasonably acceptable to the Company. The right of any Holder to registration pursuant to Section 1.3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. The Company shall (together with all Holders distributing their Registrable Securities through such underwriting) enter into an under writing agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 1.3, if the managing underwriter advises the participating Holders in writing that marketing factors so as to not materially adversely impact the market price of the Company's Common Stock require a limitation of the number of shares to be underwritten (an "Underwriter's Cutback"), the Company shall so advise all participating Holders, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all participating Holders thereof in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders. If any Holder disapproves of the terms of the underwriting, he may elect to withdraw therefrom by written notice to the Company and the managing underwriter. If, by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the limit imposed by the underwriters) the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used in determining the limitation as set forth above. Any Registrable Securities which are excluded from the underwriting by reason of the underwriter's marketing limitation or withdrawn from such underwriting shall be withdrawn from such registration and shall remain subject to the lockup agreement in Section 1.10.
Appears in 1 contract
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect any registration with respect to shares Registrable Securities then outstanding having anticipated aggregate proceeds equal to or exceeding Ten Million Dollars ($10,000,000), net of Registrable Securitiesunderwriting discounts and expenses associated with the registration and offering, the Company will:
(ia) promptly Promptly give written notice of the proposed registration (including whether the proposed registration is to be underwritten) to all other HoldersHolders and the Common Stockholders; and
(iib) as As soon as reasonably practicable, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering (including, without limitation, filing post-effective amendments, appropriate qualification qualifications under applicable blue sky or other state securities laws laws, and appropriate materials to assure compliance with applicable regulations issued under the Securities Act Act) and any other governmental requirements or regulations) as may be so requested and take such actions as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of and Common Shares as are specified in a written request or requests received by the Company from any Holder or Holders joining in such request by delivering a written notice to such effect to the Company Common Stockholder within twenty (20) days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoing, Company; provided that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.12.1:
(Ai) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(Bii) unless Until the requested earlier to occur of April 30, 2009 or the one hundred eightieth day next following the effective date of the first registration would have statement pertaining to an aggregate initial offering price of all Registrable Securities sought any of the equity securities of the Company to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000the general public;
(Ciii) during During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate of the date of filing of, and that ends ending on a date one hundred and eighty (180) days immediately following after the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan)Company-initiated registration; provided, however, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(Div) after After the Company has effected initiated two (2) registrations pursuant to this Section 3.1(a2.1 (counting for this purpose only (A) and such registrations have a registration that has been declared or ordered effective;effective and pursuant to which securities have been sold or (B) a registration that has been withdrawn by the Initiating Holders and with respect to which such Initiating Holders have elected not to bear the Registration Expenses pursuant to Section 2.7 and would, absent such election, have been required to bear such expenses); or
(Ev) within twelve (12) months after If the shares of Registrable Securities proposed to be disposed of by the Initiating Holders may be immediately registered on Form S-3 pursuant to a request made in accordance with Section 2.13. If the Company has effected such a shall furnish to the Initiating Holders requesting registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders 2.1 a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) daysstating that, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company or and its stockholders for a such registration statement to be filed in on or before the near future date filing would be required and that it is, therefore, is therefore essential to defer the filing of such registration statement. In , then the Company may direct that such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall request for registration be deferred one or more times each delayed for a period not in excess of ninety (90) days, such right to exceed 180 days from the receipt of the delay a request to file such registration be exercised by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per in any twelve-month period. Subject to the foregoing clauses (A) through (F), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders.
Appears in 1 contract
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, the Company In case Echelon shall receive from one or more Holders a written request from Initiating Holders that the Company Echelon effect any registration registration, qualification or compliance with respect to not less than 1,000,000 shares (appropriately adjusted for stock splits, stock dividends, recapitalizations and the like) of Registrable Securities, the Company Echelon will:
(i) promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, practicable use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to the Company request received by Echelon within twenty (20) 20 days after the date of delivery receipt of such written notice by the Company pursuant to subsection (i) abovefrom Echelon. Notwithstanding the foregoingProvided, the Company however, that Echelon shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.11.2:
(A1) if the Registrable Securities proposed In any particular jurisdiction in which Echelon would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless Echelon is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B2) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during During the period that begins starting with the date sixty (60) days before the Company’s good faith estimate prior to Echelon's estimated date of the filing of, and that ends one hundred eighty ending on the date three (1803) days months immediately following the effective date of, any registration statement pertaining to any securities of the Company Echelon (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, provided that the Company Echelon is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D3) after the Company After Echelon has effected two three (23) such registrations pursuant to this Section 3.1(asubparagraph 1.2
(a) at the request of one or more Holders, and such registrations have been declared or ordered effective;
(E) within twelve (12) months after ; provided, however, that if a registration request made by any Holder is subsequently withdrawn at any time by the Company has effected request of such a Holder, the Holders shall forfeit their right to one requested registration pursuant to this Section 3.1(a)1.2; provided further, and however, that if at the time of such withdrawal, the Holders have learned of a materially adverse change in the financial condition, business or prospects of Echelon from that known to the Holder or Holders at the time of their request, the withdrawal shall not result in such a forfeit of the Holders' rights to a requested registration has been declared or ordered effective; orpursuant to this Section 1.2;
(F4) if the Company furnishes If Echelon shall furnish to the Initiating such Holder or Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) Echelon stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company Echelon or its stockholders for a registration statement to be filed in the near future and that it isfuture, therefore, essential to defer the filing of such registration statement. In such case, the Company’s then Echelon's obligation to use its commercially reasonable best efforts to register, qualify or comply under this Section 3.1(a) 1.2 shall be deferred one or more times each for a period not to exceed 180 one hundred twenty (120) days from the date of receipt of the written request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month periodfrom any Holder. Subject to the foregoing clauses (A1) through (F4), the Company Echelon shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request of such Holder or requests of the Initiating Holders.
Appears in 1 contract
Samples: Registration Rights Agreement (Enel Societa Per Azioni)
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from [2] or the Initiating Holders a written request from Initiating Holders that the Company effect any registration registration, qualification or compliance with respect to shares of the Registrable Securities, the Company will:
(i) promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicablepracticable and in any event within one hundred twenty (120) days after receipt of such written request, use its commercially reasonable efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after receipt of the date of delivery of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.11.5:
(A) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B) unless With respect to the requested Initiating Holders, prior to the earlier of (1) January 1, 2002 or (2) six months after the effective date of the Company’s Initial Public Offering;
(C) With respect to [2], prior to six months after the effective date of the Company’s Initial Public Offering;
(D) At the request of the Initiating Holders after the Company has effected two (2) such registrations at the request of the Initiating Holders pursuant to this subparagraph 1.5(a), each such registration would has been declared or ordered effective and the securities offered pursuant to each such registration have an aggregate offering price been sold;
(E) At the request of all Registrable Securities sought [2] after the Company has effected one (1) such registration at the request of [2] pursuant to this subparagraph 1.5(a), such registration has been declared or ordered effective and the securities offered pursuant to such registration have been sold;
(F) At the joint request of the Initiating Holders and [2] after the Company has effected one (1) such registration at the joint request of the Initiating Holders and [2] pursuant to this subparagraph 1.5(a), such registration has been declared effective or ordered effective and the securities offered pursuant to such registration have been sold;
(G) If the anticipated gross proceeds to be registered received by all Holders, net of underwriting discounts and commissions, exceeding such Holders are less than $10,000,000;
(CH) during During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate of the date of filing of, and that ends one hundred eighty ending on a date ninety (18090) days immediately following after the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan)initiated by the Company; provided, however, provided that the Company is actively employing employed in good faith in all reasonable efforts to cause such registration statement to become effective;
(D) after effective and provided further that the Company has effected two (2) registrations pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to rights of the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a include Registrable Securities for registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to governed by Section 3.2 1.6 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (FH), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of [2] or the Initiating Holders; provided that if (i) in the good faith judgment of the board of directors of the Company, such registration would be seriously detrimental to the Company and the board of directors of the Company concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the board of directors of the Company, it would be seriously detrimental to the Company for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for a period of not more than one hundred eighty (180) days after receipt of the request of the Initiating Holders, and provided further that the Company shall not defer its obligation in this manner more than once in any twelve-month period.
Appears in 1 contract
Samples: Investor Rights Agreement
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from the Purchaser, from Cultor or from the Managers a written request from Initiating Holders request, signed by the Purchaser, Cultor or all of the Managers, as the case may be, that the Company effect any a registration under the Securities Act of 1933, as amended (the "Securities Act") with respect to shares the Registrable Securities of Registrable Securitiesany such Holder, the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) will as soon as practicable, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws (provided that the Company shall not be required in connection therewith to qualify to do business or to file a general consent to service of process in any such state or jurisdiction) and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsAct) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering a written notice to such effect to the Company within twenty (20) days after the date of delivery of such written notice by the Company pursuant to subsection (i) above. Notwithstanding the foregoing, ; provided that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.11:
(Ai) if Within 6 years of the Registrable Securities proposed to be registered may be registered immediately on Form S-3 pursuant to Section 3.3 belowdate of this Agreement;
(Bii) unless Within the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during the period that begins sixty (60) days before the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days day period immediately following the effective date of, any of the registration statement pertaining to any the first underwritten public offering of securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effectivefor its own account;
(Diii) In the case of a request by either the Managers or Cultor, after the Company has effected two (2) registrations pursuant to this Section 3.1(a) 1 on behalf of the Managers as a group or on behalf of Cultor, as the case may be, and such registrations registration have been declared or ordered effective;
(E) within twelve (12) months effective or, in the case of a request by the Purchaser, after the Company has effected one (1) such a registration pursuant to this Section 3.1(a), on behalf of the Purchaser and such registration has been declared or ordered effective; or;
(Fiv) if If within thirty (30) days of such request the Company furnishes gives notice that it is engaged or has fixed plans to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to engage in an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first initial firmly underwritten registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in with the near future Securities and that it is, therefore, essential to defer Exchange Commission (the filing "Commission") within thirty (30) days;
(v) If at the time of such registration statement. In such casethe request, the Company’s obligation Holder or Holders making the request could sell all of the Registrable Securities requested to use its commercially reasonable efforts to register, qualify or comply be registered under this Section 3.1(aRule 144 promulgated under the Securities Act ("Rule 144") shall be deferred one or more times each for a during the three-month period not to exceed 180 days from following such request;
(vi) If at the receipt time of the request to file such registration by such Initiating the Holder or HoldersHolders making the request own, provided that in the Company may aggregate, less than five percent (5%) of the Company's then outstanding shares of Common Stock (without giving effect to shares issuable upon exercise or conversion of outstanding securities); or
(vii) If the aggregate offering to the public of the Registrable Securities requested to be registered would not exercise this deferral right more than once per twelve-month periodbe at least $2,500,000. Subject to the foregoing clauses (Ai) through (Fvii) and to Section (c), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating HoldersPurchaser, Cultor or the Managers.
Appears in 1 contract
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect any registration (other than a registration on Form S-3 or any related form of Registration Statement) with respect to shares at least twenty percent (20%) of all the Registrable SecuritiesSecurities the outstanding (or any lesser percentage if the anticipated gross offering price would exceed $5,000,000), the Company will:
(ia) promptly give written notice of the proposed registration to all other Holders; and
(iib) as soon as practicable, use commercially reasonable its diligent best efforts to effect such registration as part of a firm commitment underwritten public offering (including, without limitation, the execution of an undertaking to file posteffective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsAct) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to the Company request given within twenty fifteen (2015) days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoing, Company; provided that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.12.2:
(Ai) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(ii) Prior to the earlier of (A) January 1, 1993 or (B) unless one year following the requested registration would have an aggregate effective date of the Company's first registered underwritten offering price to the general public of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000its securities for its own account;
(Ciii) during the period that begins sixty Within four (604) days before the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days months immediately following the effective date of, of any registration statement pertaining to any an underwritten public offering of securities of the Company for its own account (other than a registration of securities in relating solely to a Commission Rule 145 transaction or with respect a registration relating solely to an employee benefit planplans or a registration on any registration form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of Registrable Securities); provided, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;and
(Div) after After the Company has effected an aggregate of two (2) registrations pursuant to this Section 3.1(a) 2.2 and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (Ai) through (Fiv) and to Section 2.2(d), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders., and in any event within one hundred twenty (120) days of such request; provided, however, that if the Company shall furnish to such Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be
Appears in 1 contract
Samples: Stock Restriction, Information Rights and Registration Rights Agreement (PLX Technology Inc)
Requested Registration. If, (ax) If at any time following 180 days after the earlier distribution by Holdings to its members of (i) three (3) years after the date all or a portion of the Agreement or (ii) one (1) year after the consummation of the Initial Public OfferingCommon Stock owned by it, the Company shall receive receives from either the Crescent Initiating Holders, the MDC Initiating Holders, the Series A Initiating Holders or the L/C Initiating Holders a written request from Initiating Holders that the Company effect any a registration with respect to shares of Registrable Securitiesunder the Securities Act, or (y) following the foreclosure by the Collateral Agent or Crescent under the Pledge Agreement, the Company receives from the Collateral Agent or the Crescent Initiating Holders a written request that the Company effect a registration under the Securities Act, the Company will:
(ia) promptly give written notice of the proposed registration to all other Holders; and
(iib) as soon as practicable, use commercially its reasonable best efforts to effect such registration as part of a firm commitment underwritten public offering (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws laws, and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsAct) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to the Company request given within twenty fifteen (2015) days after the date of delivery receipt of such written notice by from the Company Company; provided that (x) the MDC Initiating Holders and the Crescent Initiating Holders are each entitled to two registrations pursuant to subsection this Section 2.1, no more than one of which may be effected in any given 12-month period; (iy) above. Notwithstanding the foregoing, Series A Initiating Holders and the L/C Initiating Holders are each entitled to only one registration pursuant to this Section 2.1 and (z) that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification, or compliance pursuant to this Section 3.12.1:
(Ai) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification, or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(Bii) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during During the period that begins sixty (60) of 180 days before the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days immediately following the effective date of, any of the registration statement pertaining to any a registered public offering of securities of the Company for cash for its own account (other than a registration of securities in relating solely to a Commission Rule 145 transaction or with a registration relating solely to employee benefit plans); or
(iii) With respect to an employee benefit plan); providedthe MDC Initiating Holders, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D) after the Company has effected two (2) registrations on behalf of the MDC Initiating Holders requesting registration pursuant to this Section 3.1(a) 2.1 and such registrations have been declared or ordered effective;
(E) within twelve (12) months ; with respect to the Crescent Initiating Holders, after the Company has effected two registrations on behalf of the Crescent Initiating Holders requesting registrations pursuant to Section 2.1 and such a registrations have been declared effective (subject to paragraph (f)); with respect to the Series A Initiating Holders, after the Company has effected one registration on behalf of the Series A Initiating Holders requesting registration pursuant to this Section 3.1(a), 2.1 and such registration has been declared or ordered effectiveeffective (subject to paragraph (f)) and, with respect to the L/C Initiating Holders, after the Company has effected one registration on behalf of the L/C Initiating Holders requesting registration pursuant to Section 2.1 and such registration has been declared effective (subject to paragraph (f)); or
(Fiv) if Unless the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company Holders requesting registration (together with any other Holders who may not exercise this deferral right more than once per twelve-month periodparticipate in such registration) propose to dispose of Registrable Securities which they reasonably anticipate will have an aggregate disposition price (before deduction of underwriting discounts and expenses of sale) of at least $5,000,000. Subject to the foregoing clauses (Ai) through (Fiv) and to Section 2.1(d), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the MDC Initiating Holders., the Crescent Initiating Holders, the
Appears in 1 contract
Samples: Registration Rights Agreement (American Residential Investment Trust Inc)
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect any registration registration, qualification or compliance with respect to shares of Registrable SecuritiesSecurities with an anticipated aggregate offering price, net of underwriting discounts and commissions, of ten million dollars ($10,000,000), the Company will:
(i) promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders, except for the Founders, who shall not be entitled to registration in this Section 5.1; and
(ii) as soon as practicable, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering a written notice to such effect to the Company within twenty in
(20b) days after the date of delivery of such written notice by the Company pursuant to subsection (i) above. Notwithstanding the foregoing, the Company shall not be obligated to take any action to effect or complete any such registration pursuant to this Section 3.15.1:
(Ai) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(Bii) unless Prior to the requested registration would have an aggregate earlier to occur of: (x) July 31, 1991 and (y) six months after the effective date of the Company's first registered public offering price of all Registrable Securities sought to be registered by all Holders, net shares of underwriting discounts and commissions, exceeding $10,000,000its Common Stock;
(Ciii) during During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate 's estimated date of the filing of, and that ends one hundred eighty ending on the date six (1806) days months immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(Div) after After the Company has effected two (2) such registrations pursuant to this Section 3.1(a) subparagraph 5.1(a), and such registrations have been declared or ordered effectiveeffective and remains effective until the earlier to occur of (x) 90 days or (y) the sale all the securities offered pursuant to each such registration;
(Ev) within twelve (12) months after If the Company has effected shall furnish to such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders shareholders for a registration statement to be filed in the near future and that it isfuture, therefore, essential to defer the filing of such registration statement. In such case, then the Company’s 's obligation to use its commercially reasonable best efforts to register, qualify or comply under this Section 3.1(a) 5.1 shall be deferred one or more times each for a period not to exceed 180 90 days from the date of receipt of written request from the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right for more than once per twelve-month 90 days in any one year period.
(vi) If such registration, qualification or compliance is proposed to be part of a firm commitment underwritten public offering with underwriters not reasonably acceptable to the Company. Subject to the foregoing clauses (Ai) through (Fvi), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders.
Appears in 1 contract
Samples: Investors Rights Agreement (Marvell Technology Group LTD)
Requested Registration. Prior to such time as the Company has effected two (a2) If registrations of at any time after the earlier of (i) three (3) years after the date of the Agreement least $10,000,000 each pursuant to this Section 3.1 and such registrations have been declared or (ii) one (1) year after the consummation of the Initial Public Offeringordered effective, if the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect any registration (other than a registration on Form S-3 or any related form of registration statement) with respect to shares of Registrable Securities, the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicablepracticable but in any event within ninety (90) days, use commercially reasonable its diligent best efforts to effect such registration as part of a firm commitment underwritten public offering (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsAct) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to the Company request given within twenty fifteen (2015) days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoing, Company; provided that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.1:
(A1) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B2) unless Prior to the requested earlier of (i) three (3) years after the date of this Agreement or (ii) six (6) months following the closing of the first firm commitment underwritten public offering of common stock of the Company for its own account pursuant to a registration would have an aggregate offering price of all Registrable statement filed under the Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000Act;
(C3) during During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate estimated date of the filing of, and that ends one hundred eighty ending on the date six (1806) days months immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities relating solely to the sale of securities to participants in a Company stock plan or in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, transaction) provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D4) after If the Company has effected two Company’s Common Stock is not listed on a national securities exchange (2) registrations pursuant to this Section 3.1(aas defined in the Securities Exchange Act of 1934) and the Initiating Holders do not request that such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effectiveoffering be firmly underwritten; or
(F5) if the Company furnishes to If the Initiating Holders a certificate signed by the President or Chief Executive Officer propose to dispose of the Company (i) giving notice shares of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities Registrable Securities that may be immediately registered on Form S-3 pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to a request made under Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (F), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders3.3 below.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Fox Hollow Technologies Inc)
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect any registration registration, qualification or compliance with respect to shares of the Registrable Securities, the Company willshall:
(i) promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicablepracticable and in any event within one hundred twenty (120) days after receipt of such written request, use commercially reasonable efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after receipt of the date of delivery of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.11.5:
(A) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B) unless Prior to the requested registration would have an aggregate offering price earlier of all Registrable Securities sought to be registered by all Holders, net (1) four (4) years after the date of underwriting discounts and commissions, exceeding $10,000,000this agreement or (2) six (6) months after the effective date of the Company’s initial public offering;
(C) during After the Company has effected two (2) such registrations pursuant to this subparagraph 1.5(a), such registration has been declared or ordered effective and the securities offered pursuant to each such registration have been sold;
(D) During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate of the date of filing of, and that ends ending on a date one hundred eighty (180) days immediately following after the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan)initiated by the Company; provided, however, provided that the Company is actively employing employed in good faith in all commercially reasonable efforts to cause such registration statement to become effective;
(D) after effective and provided further that the Company has effected two (2) registrations pursuant rights of the Initiating Holders to this include Registrable Securities for registration in the Company’s registration shall be governed by Section 3.1(a) and such registrations have been declared or ordered effective;1.6 hereof; or
(E) within twelve If such registration, qualification or compliance involves securities with an aggregate value less than Five Million Dollars (12) months after the Company has effected such a registration pursuant to this Section 3.1(a$5,000,000), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (FE), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders; provided, however, that if (i) in the good faith judgment of the board of directors of the Company (the “Board”), such registration would be seriously detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for up to two (2) periods of not more than sixty (60) days each after receipt of the request of the Initiating Holders, and provided further, that the Company shall not defer its obligation in this manner more than once in any twelve (12) month period.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Tobira Therapeutics, Inc.)
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, the Company shall receive from the Initiating Holders a written request from Initiating Holders that the Company effect any registration with respect to shares all or a part of the Registrable Securities, the Company willshall:
(i) promptly give written notice of the proposed registration to all other HoldersHolders in accordance with Section 3.4 hereof; and
(ii) subject to the terms and conditions of this Section 2.1, as soon as practicable, but in any event within one hundred twenty (120) days after receipt of a request for registration, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering (including, without limitation, filing post-effective amendments, appropriate qualification qualifications under applicable blue sky or other state securities laws laws, and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsAct) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after the date of delivery of such written notice by from the Company pursuant to subsection (i) aboveis mailed or delivered in accordance with Section 3.4 hereof. Notwithstanding the foregoing, the The Company shall not be obligated to effect, or to take any action to effect or complete effect, any such registration pursuant to this Section 3.12.1:
(A) if in any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification, or compliance, unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B) unless if the requested Company has, pursuant to this Agreement, effected registration would have an aggregate offering price of all Registrable Securities sought requested to be registered by all Holdersregistered, net of underwriting discounts which registration has been declared or order effective and commissions, exceeding $10,000,000pursuant to which securities have been sold;
(C) during the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D) after the Company has effected two (2) registrations pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (Company-initiated registration; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or
(D) including for if the Company’s first Initiating Holders propose to dispose of shares of Registrable Securities which may be immediately registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished on Form S-3 pursuant to a request made under Section 3.2 2.3 hereof, or .
(iib) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (FE), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders; provided, however, that if (i) in the good faith judgment of the Board of Directors of the Company, such registration would be materially detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing, for a period of not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders, and, provided further, that the Company shall not defer its obligation in this manner more than one (1) time in any twelve (12) month period. If the Company elects to defer such filing pursuant to this Section 2.1(b), the Company shall use its best efforts to file a registration statement covering the Registrable Securities so requested to be registered within thirty (30) days of the expiration of the one hundred twenty (120) day deferral period. The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 2.1(d) hereof, include other securities of the Company, with respect to which registration rights have been granted and may include securities of the Company being sold for the account of the Company.
(c) If the requested registration is an underwritten offering, the right of any Holder to registration pursuant to Section 2.1(a) shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder with respect to such participation and inclusion) to the extent provided herein. A Holder may elect to include in such underwriting all or a part of the Registrable Securities such Holder holds. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If Registrable Securities or other securities are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 2.1(d), then the Company shall offer to all Holders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion in accordance with Section 2.1(d). participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the Other Stockholders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company.
Appears in 1 contract
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect any registration registration, qualification or compliance with respect to shares of the Registrable Securities, the Company will:
(i) promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicablepracticable and in any event within sixty (60) days after receipt of such written request, use its commercially reasonable best efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after receipt of the date of delivery of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.11.5:
(A1) if In any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(2) Prior to the earlier of January 1, 2008 or six (6) months after the effective date of the Company’s Initial Public Offering;
(3) In the event that (i) the Registrable Securities proposed to be registered may included in such registration shall be registered sold to the public at a per share price equal to or less than $8.00 and (ii) the valuation of the Company immediately on Form S-3 pursuant prior to Section 3.3 belowthe effectiveness of such registration does not exceed $150,000,000;
(4) In the event that the Registrable Securities to be included in such registration do not represent at least either (A) twenty-five percent (25%) of the Registrable Securities then outstanding, or (B) unless the requested registration would have an aggregate offering price proceeds of at least $25,000,000;
(5) After the Company has effected two (2) such registrations pursuant to this subparagraph 1.5(a) that includes Registrable Securities held by the Investors, such registrations have been declared or ordered effective and the securities offered pursuant to each such registration have been sold; provided that all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;requested for inclusion were in fact included in such registration; or
(C6) during Within one year from the date of the first registration requested under this Section 1.5(a) provided such registration has been declared or ordered effective and the securities offered pursuant to such registration have been sold; or
(7) During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate of the date of filing of, and that ends ending on a date one hundred eighty (180) days immediately following after the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan)initiated by the Company; provided, however, provided that the Company is actively employing and in good faith using all commercially reasonable best efforts to cause such registration statement to become effective;
(D) after effective and provided further that the Company has effected two (2) registrations pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to rights of the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a include Registrable Securities for registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to governed by Section 3.2 1.6 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A1) through (F7), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders; provided, however, that if (i) in the good faith judgment of the Board of Directors of the Company, such registration would be seriously detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing (except as provided in clause (7) above) for a period of not more than one hundred eighty (180) days after receipt of the request of the Initiating Holders, and provided further, that the Company shall not defer its obligation in this manner more than once in any twelve-month period.
Appears in 1 contract
Requested Registration. In case the Company shall receive (ai) If from Initiating Holders at any time after or times not earlier than the earlier of (ia) three (3) years after the date of the this Agreement or (iib) one six (16) year months after the consummation effective date of the Initial Public Offering, first registration statement filed by the Company shall receive covering an underwritten offering of any of its securities to the general public (“IPO”), a written request from Initiating Holders that the Company effect any registration (other than a registration on Form S-3 or any related form of Registration Statement) with respect to at least twenty percent (20%) of all the Registrable Securities then outstanding (or any lesser percentage if the anticipated gross offering price, net of underwriting costs and commissions, would exceed $10,000,000), or (ii) from holders of a majority of the outstanding shares of Registrable SecuritiesClass B Preferred Stock (the “Class B Majority”) or holders of a majority of the outstanding shares of Class B-1 Preferred Stock (the “Class B-1 Majority”) at any time or times following the date that is six (6) months after the IPO, a written request that the Company effect any registration (other than a registration on Form S-3 or any related form of Registration Statement) with an anticipated gross offering price, net of underwriting costs and commissions, that would exceed $10,000,000, the Company will:
(ia) promptly give written notice of the proposed registration to all other Holders; and
(iib) as soon as practicable, use commercially reasonable its diligent best efforts to effect such registration as part of a firm commitment underwritten public offering (including, without limitation, the execution of an undertaking to file post effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsAct) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to the Company request given within twenty fifteen (2015) days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoing, Company; provided that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.11.2:
(Ai) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(Bii) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
Within six (C6) during the period that begins sixty (60) days before the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days months immediately following the effective date of, of any registration statement pertaining to any an underwritten public offering of securities of the Company for its own account (other than a registration of securities in relating solely to a Commission Rule 145 transaction or with respect a registration relating solely to an employee benefit planplans or a registration on any registration form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of Registrable Securities); provided, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;and
(Diii) after After the Company has effected an aggregate of two (2) registrations pursuant to this Section 3.1(a) 1.2 and such registrations have been declared or ordered effective;
(E; provided, that this Section 1.2(b)(iii) within twelve (12) months after shall not apply to requests made by the Class B Majority or the Class B-1 Majority until such time as the Company has effected an aggregate of two registrations requested by such a registration Class B Majority or Class B-1 Majority pursuant to this Section 3.1(a), 1.2 and such registration has registrations have been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (Ai) through (Fiii) and to Section 1.2(d), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders, and in any event within ninety (90) days of such request; provided, however, that if the Company shall furnish to such Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed on or before the date filing would be required and it is therefore essential to defer the date of such filing, the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided, however that the Company may not make such certification more than once in any 12 month period.
Appears in 1 contract
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect any registration registration, qualification or compliance with respect to shares of the Registrable Securities, the Company will:
(i) promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicablepracticable and in any event within ninety (90) days after receipt of such written request, use its commercially reasonable best efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after receipt of the date of delivery of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.12.5:
(A) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B) unless Prior to twelve (12) months after the requested registration would have an aggregate offering price effective date of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000the Company’s initial public offering;
(C) during After the Company has effected two (2) such registrations pursuant to this subparagraph 2.5(a), such registration has been declared or ordered effective and the securities offered pursuant to each such registration have been sold; provided that all Registrable Securities requested for inclusion were in fact included in such registration. The Company shall not be obligated to effect more than two registration statements in any twelve (12) month period;
(D) During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate of the date of filing of, and that ends ending on a date one hundred eighty (180) days immediately following after the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan)initiated by the Company; provided, however, provided that the Company is actively employing employed in good faith in all commercially reasonable best efforts to cause such registration statement to become effective;
(D) after effective and provided further that the Company has effected two (2) registrations pursuant rights of the Initiating Holders to this include Registrable Securities for registration in the Company’s registration shall be governed by Section 3.1(a) and such registrations have been declared or ordered effective;2.6 hereof; or
(E) within twelve If such registration, qualification or compliance involves securities with an aggregate value less than Ten Million Dollars (12) months after the Company has effected such a registration pursuant to this Section 3.1(a$10,000,000), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (FE), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders; provided, however, that if (i) in the good faith judgment of the board of directors of the Company (the “Board”), such registration would be seriously detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing (except as provided in clause (D) above) for up to two (2) periods of not more than sixty (60) days each after receipt of the request of the Initiating Holders, and provided further, that the Company shall not defer its obligation in this manner more than once in any twelve-month period.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Syndax Pharmaceuticals Inc)
Requested Registration. (a) If If, at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offeringtime, the Company shall receive from Investor a written request from Initiating Holders that the Company effect any a registration with respect to shares under the Securities Act for the sale of at least 25% of the Registrable SecuritiesSecurities (as defined below) held or obtainable by all of the Holders, the Company willshall:
(i) promptly within ten (10) days after receipt of such written request, give written notice of the proposed registration to all other HoldersHolders (if any); and
(ii) as soon as practicable, practicable use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering register (including, without limitation, appropriate qualification under applicable state securities laws and appropriate compliance with applicable regulations issued under the Securities Act execution of an undertaking to file post-effective amendments and any other governmental requirements or regulationsrequirements) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with which a Holder requests to be registered and all or such portion of the Registrable Securities of which any other Holder or Holders joining in such request by delivering a written notice requests to such effect to the Company be registered within twenty (20) days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; provided, that the Company shall not be obligated to take file any action to effect or complete any such additional registration statement pursuant to this Section 3.1:
(A) if the Registrable Securities proposed to be registered may be registered immediately on Form S-3 pursuant to Section 3.3 below;
(B) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during the period that begins sixty (60) days before the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D) 1.1 after the Company has effected two (2) such registrations pursuant to this Section 3.1(a) at the request of Investor and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (F)foregoing, the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable practicable, but in any event within sixty (60) days after receipt of the request or requests of a Holder and shall use its best efforts to have such registration statement promptly declared effective by the Initiating Securities Exchange Commission whether or not all Registrable Securities requested to be registered can be included. If, however, the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good- faith judgment of the Board of Directors it would be materially detrimental to the Company and its shareholders for such registration statement to be filed within such sixty-day (60-day) period and it is therefore deferring the filing of such registration statement, the Company shall have an additional period of not more than sixty (60) days after the expiration of the initial sixty-day (60- day) period within which to file such registration statement; provided, that during such time the Company may not file a registration statement for securities to be issued and sold for its own account or the account of an other of its shareholders.
(b) If a Holder intends to distribute the Registrable Securities covered by its request by means of an underwriting, such Holder shall so advise the Company as part of its request and the Company shall include such information in the written notice referred to in subsection 1.1(a)(i). The underwriter may be selected by the Holders electing to sell their Registrable Securities, subject to the reasonable approval of the Company. The right of any Holder to registration pursuant to this Section 1.1 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. The Company shall (together with all Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provisions of this Section 1.1, if the representative of the underwriter advises the Company and the Holder(s) in writing that marketing factors require a limitation on the number of shares to be underwritten (a "Cutback"), the number of shares to be included in the underwriting or registration shall be allocated first to the Holders, without limitation, and thereafter shall be allocated among the Company and the other holders requesting inclusion in the registration pro rata on the basis of the number of shares each requesting other holder (or the Company, as the case may be) requests to be included bears to the total number of shares of all requesting other holders (and the Company) that have been requested to be included in such registration. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Holder(s). The securities so excluded shall also be withdrawn from registration.
(c) If, at the time any written request for registration is received by the Company pursuant to this Section, the Company has determined to proceed with the actual preparation and filing of a registration statement under the Securities Act in connection with the proposed offer and sale for cash of any of its securities by it or any of its security holders, or in the event that Section 1.3 hereof is applicable, then such written request shall be deemed to have been given pursuant to Section 1.2 and Section 1.3 hereof, as the case may be, rather than this Section 1.1, and the rights of the Holders covered by such written request shall be governed by Section 1.2 or Section 1.3, as the case may be.
Appears in 1 contract
Samples: Registration Rights Agreement (Boots & Coots International Well Control Inc)
Requested Registration. (a) If If, at any time after the earlier of to occur (i) three (3) years after the date of the Agreement or ---------------------- July __, 1998 and (ii) one (1) year after the consummation sale pursuant to a registration statement of any securities of the Initial Public OfferingCompany, the Company shall receive receives from TCW a written request from Initiating Holders that to effect a registration under the Company effect any registration with respect to shares of Registrable SecuritiesSecurities Act, the Company will:
(ia) promptly give written notice of the proposed registration to all other Holders; and
(iib) as soon as practicable, use commercially its reasonable best efforts to effect such registration as part of a firm commitment underwritten public offering (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws laws, and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsAct) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to the Company request given within twenty fifteen (2015) days after the date of delivery receipt of such written notice by from the Company Company; provided that (w) TCW is entitled to three registrations pursuant to subsection this Section 5.1, no more than one of which may be effected in any given 12-month period; (ix) if TCW requests a shelf registration pursuant hereto and such Registration Statement remains effective for less than one year, then if TCW sells less than 75% of the securities registered in such shelf registration then TCW shall be entitled to demand another registration in addition to those set forth in clause (w) above. Notwithstanding the foregoing, ; and (y) the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification, or compliance pursuant to this Section 3.15.1:
(Ai) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification, or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(Bii) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during During the period that begins sixty (60) of 90 days before the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days immediately following the effective date of, any of the registration statement pertaining to any a registered public offering of equity securities of the Company for cash for its own account (other than a registration of securities in relating solely to a transaction pursuant to Rule 145 transaction under the Securities Act or with respect a registration relating solely to an employee benefit planplans); provided, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D) after the Company has effected two (2) registrations pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(Fiii) if the Company furnishes unless TCW proposes to the Initiating Holders a certificate signed by the President or Chief Executive Officer dispose of the Company Registrable Securities which it reasonably anticipates will have an aggregate disposition price (ibefore deduction of underwriting discounts and expenses of sale) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month periodat least $5,000,000. Subject to the foregoing clauses (Ai) through and (Fii) and to Section 5.1(d), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating HoldersTCW, and in no event later than ninety (90) days after receipt of such request.
Appears in 1 contract
Samples: Stockholders' Agreement (Firstamerica Automotive Inc /De/)
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, the Company shall receive from the Initiating Holders a written request from Initiating Holders that the Company effect any registration with respect to shares all or a part of the Registrable Securities, the Company willshall:
(i) promptly give written notice of the proposed registration to all other HoldersHolders in accordance with Section 3.4 hereof; and
(ii) subject to the terms and conditions of this Section 2.1, as soon as practicable, but in any event within one hundred twenty (120) days after receipt of a request for registration, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering (including, without limitation, filing post-effective amendments, appropriate qualification qualifications under applicable blue sky or other state securities laws laws, and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsAct) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after the date of delivery of such written notice by from the Company pursuant to subsection (i) aboveis mailed or delivered in accordance with Section 3.4 hereof. Notwithstanding the foregoing, the The Company shall not be obligated to effect, or to take any action to effect or complete effect, any such registration pursuant to this Section 3.12.1:
(A) if in any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification, or compliance, unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B) unless if the requested Company has, pursuant to this Agreement, effected registration would have an aggregate offering price of all Registrable Securities sought requested to be registered by all Holdersregistered, net of underwriting discounts which registration has been declared or order effective and commissions, exceeding $10,000,000pursuant to which securities have been sold;
(C) during the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D) after the Company has effected two (2) registrations pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (Company-initiated registration; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or
(D) including for if the Company’s first Initiating Holders propose to dispose of shares of Registrable Securities which may be immediately registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished on Form S-3 pursuant to a request made under Section 3.2 2.3 hereof, or .
(iib) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (FE), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders; provided, however, that if (i) in the good faith judgment of the Board of Directors of the Company, such registration would be materially detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing, for a period of not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders, and, provided further, that the Company shall not defer its obligation in this manner more than one (1) time in any twelve (12) month period. If the Company elects to defer such filing pursuant to this Section 2.1(b), the Company shall use its best efforts to file a registration statement covering the Registrable Securities so requested to be registered within thirty (30) days of the expiration of the one hundred twenty (120) day deferral period. The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 2.1(d) hereof, include other securities of the Company, with respect to which registration rights have been granted and may include securities of the Company being sold for the account of the Company.
(c) If the requested registration is an underwritten offering, the right of any Holder to registration pursuant to Section 2.1(a) shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder with respect to such participation and inclusion) to the extent provided herein. A Holder may elect to include in such underwriting all or a part of the Registrable Securities such Holder holds. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If Registrable Securities or other securities are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 2.1(d), then the Company shall offer to all Holders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion in accordance with Section 2.1(d).
(d) If the Company shall request inclusion of securities being sold for its own account in any registration pursuant to Section 2.1 or Section 2.3, or if other persons shall request inclusion in any registration pursuant to Section 2.2, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Section 2. If the registration pursuant to Section 2.1 or Section 2.3 is pursuant to an underwritten offering, the Company shall (together with all Holders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Initiating Holders, to which the Company has reasonably consented. Notwithstanding any other provision of this Section 2.1, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the securities of the Company shall first be excluded from such registration to the extent required by such limitation; to the extent that additional shares need to be excluded to conform to such limitation, the securities held by Other Stockholders shall next be excluded; and, to the extent that additional shares need to be excluded to conform to such limitation, the number of shares that may be included shall be allocated pro rata among the Holders requesting registration in proportion to the respective amounts of Registrable Securities and other securities that such Holders have requested to be included in the registration. The Company shall advise all Holders of securities requesting registration as to the number of shares or securities that may be included in the registration and underwriting as allocated in the foregoing manner.
Appears in 1 contract
Requested Registration. Prior to such time as the Company has effected two (a2) If at any time after the earlier of (i) three (3) years after the date of the Agreement registrations pursuant to this Section 2.1 and such registrations have been declared or (ii) one (1) year after the consummation of the Initial Public Offeringordered effective, if the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect a registration (other than a registration on Form S-3 or any related form of registration statement) with respect to shares Registrable Securities representing at least twenty percent (20%) of the Registrable SecuritiesSecurities (or any lesser percentage if the anticipated aggregate offering price to the public is at least two million dollars ($2,000,000)), the Company will:
(i) promptly within ten days of the receipt by the Company of such notice, give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, practicable and in any event within sixty (60) days use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) 20 days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; Provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.12.1:
(A1) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B2) unless Prior to the requested registration would have an aggregate earlier of (i) the date six (6) months following the effective date of the Company’s first registered public offering price of all Registrable Securities sought to be registered by all Holdersits stock or (ii) August 28, net of underwriting discounts and commissions, exceeding $10,000,0002002;
(C3) during During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate estimated date of the filing of, and that ends one hundred eighty ending on the date three (1803) days months immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan, in which case there shall be no such limitation on the Company’s obligation, or with respect to the Company’s first registered public offering of its stock, in which case the period shall end on the date six (6) months following the effective date); provided, however, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D4) after After the Company has effected two (2) such registrations pursuant to this Section 3.1(a) 2.1, and such registrations have been declared or ordered effective;
(E) within twelve (12) months after ; provided, however that in the Company has effected such event that any legal restriction or prohibition shall result in the inability of the Holders participating in a registration pursuant to this Section 3.1(a), and 2.1 to sell at least 75% of the Registrable Securities included in any such registration has been declared or ordered effectivewithin 180 days of the effectiveness thereof, then the Holders shall be entitled to demand an additional registration pursuant to this Section 2.1; or
(F5) if If the Company furnishes shall furnish to the Initiating such Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders shareholders for a registration statement to be filed in the near future and that it isfuture, therefore, essential to defer the filing of such registration statement. In such case, in which case the Company’s obligation to use its commercially reasonable best efforts to register, qualify or comply under this Section 3.1(a) 2.1 shall be deferred one or more times each for a period not to exceed 180 90 days from the date of receipt of written request from the request to file such registration by such Initiating Holder or Holders; provided, provided however, that the Company may shall not exercise this deferral such right more than once per in any twelve-month period. Subject to the foregoing clauses (A1) through (F5), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable and in any event within sixty (60) days after receipt of the request or requests of the Initiating Holders.
Appears in 1 contract
Requested Registration. (a) If at any time after the earlier Company shall receive from Initiating Holders a written request that the Company file a registration statement for the shares of such Initiating Holders in which the anticipated aggregate proceeds of which net of underwriting discounts and commissions would equal or exceed: (i) three (3) years after the date of the Agreement $20,000,000 if no registered public offering has occurred or (ii) one (1) year after the consummation of the Initial Public Offering, the Company shall receive $5,000,000 if a written request from Initiating Holders that the Company effect any registration with respect to shares of Registrable Securitiesregistered public offering has occurred, the Company will:
(i1) promptly within ten days of the receipt by the Company of such notice, give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii2) as soon as practicablepracticable and in any event within sixty (60) days, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) 20 days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; Provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.1:4(a):
a) Prior to the earlier of (Ai) if date six (6) months following the Registrable Securities proposed effective date of the Company’s first registered public offering of its stock, pursuant to a firm commitment underwritten offering or (ii) December 31, 2002;
b) In any particular jurisdiction in which the Company would be registered required to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(Bc) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate estimated date of the filing of, and that ends one hundred eighty ending on the date three (1803) days months immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan, in which case there shall be no such limitation on the Company’s obligation, or with respect to the Company’s first registered public offering of its stock in which case the period shall end on the date six (6) months following the effective date); provided, however, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(Dd) after After the Company has effected two (2) such registrations pursuant to this Section 3.1(a4(a)(i) and such registrations have been declared or ordered effective;effective and the securities offered thereunder have been sold; and
(Ee) within twelve (12) months after If the Company has effected shall furnish to such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it isfuture, therefore, essential to defer the filing of such registration statement. In such case, then the Company’s obligation to use its commercially reasonable best efforts to register, qualify or comply under this Section 3.1(a4(a) shall be deferred one or more times each for a period not to exceed 180 90 days from the date of receipt of written request from the request to file such registration by such Initiating Holder or Holders; provided, provided however, that the Company may shall not exercise this deferral such right more than once per in any twelve-month period. Subject to the foregoing clauses (Aa) through (Fe), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable and in any event within sixty (60) days after receipt of the request or requests of the Initiating Holders.
Appears in 1 contract
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect any registration registration, qualification or compliance with respect to shares of the Registrable Securities, the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; andregistration, qualification or compliance
(ii) as soon as practicable, and in any event within ninety (90) days after receipt of such written request, use commercially reasonable efforts to effect file such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after receipt of the date of delivery of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.11.5:
(A) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B) unless Prior to six (6) months after the requested registration would have an aggregate offering price effective date of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000the Company’s initial public offering;
(C) during After the Company has effected two (2) such registrations pursuant to this subparagraph 1.5(a), each such registration has been declared or ordered effective;
(D) During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate of the date of filing of, and that ends ending on a date one hundred eighty (180) days immediately following after the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan)initiated by the Company; provided, however, provided that the Company is actively employing employed in good faith all in commercially reasonable efforts to cause such registration statement to become effective;
(D) after effective and provided further that the Company has effected two (2) registrations pursuant rights of the Initiating Holders to this include Registrable Securities for registration in the Company’s registration shall be governed by Section 3.1(a) and such registrations have been declared or ordered effective1.6 hereof;
(E) within twelve If such registration, qualification or compliance involves securities with an aggregate gross offering price (12before underwriters’ discounts and expenses) months after of less than Five Million Dollars ($5,000,000); or
(F) If the Company has shall have effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
1.5 within one hundred eighty days (F180) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for preceding the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement. In such case, the Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period’ request. Subject to the foregoing clauses (A) through (FE), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders; provided, however, that if (i) in the good faith judgment of the board of directors of the Company (the “Board”), such registration would be detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board, it would be detrimental to the Company for such registration statement to be filed in the near future and that it is, therefore, in the Company’s best interests to defer the filing of such registration statement, then the Company shall have the right to defer such filing for up to two (2) periods of not more than sixty (60) days each after receipt of the request of the Initiating Holders, and provided further, that the Company shall not defer its obligation in this manner more than once in any twelve (12) month period.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Aldeyra Therapeutics, Inc.)
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect any registration registration, qualification or compliance with respect to at least 80% of such shares of Registrable Securities, Securities the Company will:
(i) promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) 20 days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; Provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.11.5:
(A) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Act;
(B) unless Prior to the requested registration would have an aggregate earlier of (i) February 15, 1999 or (ii) within six months of the effective date of any registered public offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000the Company's stock;
(C) during During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate 's estimated date of the filing of, and that ends one hundred eighty ending on the date six (1806) days months immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D) after If the aggregate offering price to the public from the proposed sale of such Registrable Securities would be less than $7,500,000;
(E) After the Company has effected two (2) one such registrations pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a1.5(a), and such registration has been declared or ordered effective; or;
(F) if If the Company furnishes shall furnish to the Initiating such Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders shareholders for a registration statement to be filed in the near future and that it isat such time, therefore, essential to defer the filing of such registration statement. In such case, then the Company’s 's obligation to use its commercially reasonable best efforts to register, qualify or comply under this Section 3.1(a) 1.5 shall be deferred one or more times each for a period not to exceed 180 days from the date of receipt of written request from the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (F), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable practicable, after receipt of the request or requests of the Initiating Holders.
(b) In the event that a registration pursuant to Section 1.5 is for a registered public offering involving an underwriting, the Company shall so advise the Holders as part of the notice given pursuant to Section 1.5(a)(i). In such event, the right of any Holder to registration pursuant to Section 1.5 shall be conditioned upon such Holder's participation in the underwriting arrangements required by this Section 1.5, and the inclusion of such Holder's Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. The Company shall (together with all Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by a majority in interest of the Initiating Holders, but subject to the Company's reasonable approval. Notwithstanding any other provision of this Section 1.5, if the managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Company shall so advise all holders of Registrable Securities and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders thereof (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting) in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders at the time of filing the registration statement. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. If any Holder of Registrable Securities disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. The Registrable Securities and/or other securities so withdrawn shall also be withdrawn from registration, and such Registrable Securities shall not be transferred in a public distribution prior to 90 days after the effective date of such registration, or such other shorter period of time as the underwriters may require.
Appears in 1 contract
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect any registration (other than a registration on Form S-3 or any related form of registration statement) with respect to shares Registrable Securities representing at least forty percent (40%) of the Registrable SecuritiesSecurities (or any lesser percentage if the anticipated aggregate offering price to the public, excluding underwriting discounts and commissions, is at least seven million five hundred thousand dollars ($7,500,000)), the Company will:
(i) promptly within thirty (30) days of the receipt by the Company of such notice, give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; Provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.1:
(A) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B) unless Prior to six (6) months following the requested closing date of the Company's initial underwritten public offering pursuant to an effective registration would have an aggregate offering price of all Registrable statement under the Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000Act;
(C) during If the Company's Common Stock is not listed on a national securities exchange (as defined in the Securities Exchange Act of 1934) and the Initiating Holders do not request that such offering be firmly underwritten by underwriters selected by the Company (subject to the consent of the Holders, which consent shall not be unreasonably withheld);
(D) During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate 's estimated date of the filing of, and that ends one hundred eighty ending on the date three (1803) days months immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(DE) after After the Company has effected two (2) such registrations pursuant to this Section 3.1(a) and such (counting for this purpose only registrations which have been declared or ordered effectiveeffective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses);
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if If the Initiating Holders propose to dispose of shares of Registrable Securities which may be immediately registered on Form S-3 pursuant to a request under Section 3.3 hereof;
(G) If the Company furnishes shall furnish to the Initiating such Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it isfuture, therefore, essential to defer the filing of such registration statement. In such case, then the Company’s 's obligation to use its commercially reasonable best efforts to register, qualify or comply under this Section 3.1(a) 3.1 shall be deferred one or more times each for a period not to exceed 180 ninety (90) days from the date of receipt of written request from the request to file such registration by such Initiating Holder or Holders; provided, provided however, that the Company may shall not exercise this deferral such right more than once per in any twelve-month period. Subject to the foregoing clauses (A) through (FG), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable practicable, after receipt of the request or requests of the Initiating Holders.
Appears in 1 contract
Requested Registration. (a) If In case the Company shall receive at any time after the earlier of (i) three September 1, 2004 and (3ii) years six (6) months after the effective date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, first registration statement filed by the Company shall receive covering an offering of any of its securities to the public, a written request from Holders (“Initiating Holders Holders”) that the Company effect any registration registration, qualification or compliance with respect to shares at least forty percent (40%) of the Registrable Securities (or any lesser number of Registrable Securities if the anticipated aggregate offering price to the public from the proposed sale of such Registrable Securities, net of underwriting discounts and commissions, would exceed $8,000,000), the Company will:
(i) promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.11.2:
(A) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Act;
(B) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate estimated date of the filing of, and that ends ending on the date one hundred eighty (180) days immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(DC) after After the Company has effected two (2) such registrations pursuant to this Section 3.1(a) 1.2(a), and such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(FD) if If the Company furnishes shall furnish to the Initiating such Holders a certificate signed by the President or Chief Executive Officer Chairman of the Board of Directors of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders shareholders for a registration statement to be filed in the near future and that it isat such time, therefore, essential to defer the filing of such registration statement. In such case, then the Company’s obligation to use its commercially reasonable best efforts to register, qualify or comply under this Section 3.1(a) 1.2 shall be deferred one or more times each for a period not to exceed 180 ninety (90) days from the date of receipt of written request from the request to file such registration by such Initiating Holder or Holders; provided, provided that however, the Company may not exercise only defer one registration pursuant to this deferral right more than once per twelve-Section 1.2(a)(ii)(D) in any twelve month period. Subject to the foregoing clauses (A) through (FD), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable practicable, after receipt of the request or requests of the Initiating Holders.
(b) In the event that a registration pursuant to Section 1.2 is for a registered public offering involving an underwriting, the Company shall so advise the Holders as part of the notice given pursuant to Section 1.2(a)(i). In such event, the right of any Holder to registration pursuant to Section 1.2 shall be conditioned upon such Holder’s participation in the underwriting arrangements required by this Section 1.2, and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. The Company shall (together with all Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by a majority in interest of the Initiating Holders, but subject to the Company’s reasonable approval. Notwithstanding any other provision of this Section 1.2, if the managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be, underwritten, then the Company shall so advise all holders of Registrable Securities and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders who have elected to participate in the registration (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting) in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders at the time of filing the registration statement. No Registrable Securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. If any Holder of Registrable Securities disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. In the event of any such withdrawal, the participating Holders may increase their participation pro rata up to the amount equal to the withdrawn securities.
Appears in 1 contract
Samples: Investor Rights Agreement (Ithaka Acquisition Corp)
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, the Company shall receive from the Initiating Holders a written request from Initiating Holders that the Company effect any file a registration with respect to shares statement for at least 75% of the Registrable Securities, or at least 60% of the Series E Registrable Securities, and in either such case the aggregate gross proceeds of which registration would equal or exceed $20,000,000 (any such notice, an "INITIATION NOTICE"), then the Company will:
(i) promptly within ten days of the receipt by the Company of the Initiation Notice, give written notice of the proposed registration registration, qualification or compliance to all other HoldersHolders (the notice in this Section 4.1(a)(i) and in Section 4.2(a)(i), each called the "REGISTRATION NOTICE"); and
(ii) use its best efforts to effect, as soon as practicablepracticable and in any event within ninety (90) days after receipt of the Initiation Notice, use commercially reasonable efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) 20 days after receipt of the date of delivery of such written notice by Registration Notice from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; Provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.14.1:
(A1) if Prior to the Registrable Securities proposed to be earlier of (i) the date six (6) months following the effective date of the Company's first registered may be registered immediately on Form S-3 public offering of its stock, pursuant to Section 3.3 belowa firm commitment underwritten offering or (ii) December 31, 2002, or in the case of a registration requested with respect to at least 60% of the Series E Registrable Securities, prior to the earlier of (i) the date six (6) months following the effective date of any registered public offering of the Company's securities, pursuant to a firm commitment underwritten offering or (ii) September 30, 2001.
(2) In any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance;
(B3) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during During the period that begins starting with the date sixty (60) days before prior to the Company’s good faith estimate 's estimated date of filing of any registration statement for the securities of the filing ofCompany, and that ends one hundred eighty ending (180except as provided below) days on the date six (6) months immediately following the effective date of, of any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or except that with respect to an employee benefit plan); provided, however, that the Company Company's first registered public offering of its stock and registrations requested other than by the holders of 60% of the Series E Registrable Securities the period shall not end until the date which is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D) after the Company has effected two (2) registrations pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after following the Company has effected effective date of such a registration pursuant to this Section 3.1(astatement), and such registration has been declared or ordered effective; or
(F) if the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, and, provided, further, that the standstill period in this clause (3) including for shall not apply to a registration regarding a transaction described in subsection (a) of Rule 145 as promulgated under the Company’s first registered public offering of its Common Stock Securities Act ("RULE 145") or with respect to securities issued or issuable under an employee benefit plan or other similar plan or agreement;
(4) After the Commission whereupon Company has effected two (2) such requested registration shall be accomplished registrations pursuant to this Section 3.2 hereof, 4.1(a) as to Registrable Securities and two (2) such registrations as to Series E Registrable Securities and such registrations have been declared or ordered effective;
(ii5) If the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it isfuture, therefore, essential to defer the filing of such registration statement. In such case, then the Company’s 's obligation to use its commercially reasonable best efforts to register, qualify or comply under this Section 3.1(a) 4.1 shall be deferred one or more times each for a period not to exceed 180 ninety (90) days from the date of receipt of written request from the request to file such registration by such Initiating Holder or Holders; provided, provided however, that the Company may shall not exercise this deferral such right more than once per twelve-in any twelve (12) month period. Subject to the foregoing clauses (A) through (F), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders.
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders who are Investors or permissible assignees of Investors pursuant to Section 1.12 hereof, at any time or times after the earlier of (i) three five (35) years after the date of the Agreement hereof or (ii) one six (16) year months after the consummation effective date of the registration statement for the Initial Public Offering, the Company shall receive a written request from Initiating Holders that the Company effect any registration with respect to shares all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company willshall:
(i) promptly within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, use commercially reasonable efforts to effect and in any event within sixty (60) days of receipt of such request, file a registration as part of a firm commitment underwritten public offering (including, without limitation, appropriate qualification under applicable state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or other Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty ten (2010) days after the date of delivery of such written notice by from the Company pursuant is given, and use commercially reasonable efforts to subsection effect such registration.
(ib) above. Notwithstanding the foregoing, the The Company shall not be obligated to effect, or to take any action to effect or complete effect, any such registration pursuant to this Section 3.11.3:
(Ai) if in any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(B) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during the period that begins sixty (60) days before the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(Dii) after the Company has effected two (2) such registrations pursuant to this Section 3.1(a) and such 1.3 (counting for these purposes only registrations which have been declared or ordered effectiveeffective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(Eiii) within twelve (12) months after during the Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if period starting with the Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within date sixty (60) daysdays prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the filing of effective date of, a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) including for if the Company’s first Initiating Holders propose to dispose of Registrable Securities which may be registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished on Form S-3 pursuant to a request made under Section 3.2 1.5 hereof, or .
(iic) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be seriously materially detrimental to the Company or its stockholders for a such registration statement to be filed in the near future and that it is, therefore, essential is therefore in the best interests of the Company to defer the filing of such registration statement. In such case, the Company’s obligation Company shall have the right to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall defer such filing for the period during which such disclosure would be deferred one or more times each for a period not to exceed 180 days from the receipt of the request to file such registration by such Initiating Holder or Holdersmaterially detrimental, provided that the Company may not exercise this deferral right defer such filing for a period of more than once per twelve-one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than twice in any twelve (12) month period. Subject .
(d) The registration statement filed pursuant to the foregoing clauses request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(Ae) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by the Company and shall be reasonably acceptable to Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting; provided that notwithstanding anything to the contrary contained herein, no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters in connection with such underwriting agreement other than representations, warranties or agreements regarding such Holder, such Holder’s title to the Registrable Securities, such Holder’s authority to sell the Registrable Securities, such Holder’s intended method of distribution, absence of liens with respect to the Registrable Securities, enforceability of the applicable underwriting agreement as against such Holder, receipt of all consents and approvals with respect to the entry into such underwriting agreement and the sale of such Registrable Securities and any other representations required to be made by such Holder under applicable law, rule or regulation, and the aggregate amount of the liability of such Holder in connection with such underwriting agreement shall not exceed such Holder’s net proceeds (Fi.e. gross proceeds less underwriter’s discounts and commissions) from such underwritten offering.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall file a offer to all Holders or Other Stockholders who have retained rights to include securities in the registration statement covering the Registrable Securities right to include additional securities in the registration in an aggregate amount equal to the number of securities so requested withdrawn, with such securities to be registered as soon as practicable after receipt of the request allocated among such Holders or requests of the Initiating HoldersOther Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Tenable Holdings, Inc.)
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from a Holder or Holders which hold in the aggregate not less than fifty percent (50%) of the Registrable Securities ("Initiating Holders") a written request from Initiating Holders that the Company effect any the registration with respect to shares of at least 20% of the outstanding Registrable SecuritiesSecurities then held by it or them, the Company willshall:
(i1) promptly give written notice of the proposed registration to all other Holders; and
(ii2) as soon as practicable, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other applicable governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) days after the date of delivery receipt of such written notice by from the Company pursuant to subsection (i) above. Notwithstanding the foregoingCompany; provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.110.2:
(Ai) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Securities Act;
(Bii) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during During the period that begins sixty ending on the date three (603) days before the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days months immediately following the effective date of, of any registration statement pertaining to any securities of the Company (other than a registration of securities in a transaction covered by Rule 145 transaction under the Securities Act (a "Rule 145 Transaction") or with respect a registration of securities on Form S-8 (or any successor form) relating solely to an employee benefit plan); provided, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(Diii) after If the Company has effected two shall furnish to such Holders, within thirty (230) registrations days of any written request made pursuant to this Section 3.1(a) and such registrations have been declared or ordered effective;
(E) within twelve (12) months after 10.2(a), a certificate, signed by the President of the Company, stating that the Company has effected intends to file, within ninety (90) days of the date of such certificate, a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effectivestatement for the Company's securities; or
(Fiv) if If the Company furnishes shall furnish to the Initiating such Holders a certificate certificate, signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) daysCompany, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board it of Directors the filing of a registration statement would require the disclosure of material information regarding a possible financing, business combination or other material transaction, which disclosure the Board has determined in its good faith judgment would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it isCompany, therefore, essential to defer the filing of such registration statement. In such case, then the Company’s 's obligation to use its commercially reasonable best efforts to register, qualify or comply under this Section 3.1(a) 10.2 shall be deferred one or more times each for a single period not to exceed 180 one hundred twenty (120) days from the date of its receipt of a written request from the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (FD), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders, and in no event, later than ninety (90) days thereafter.
(ii) In the event that a registration pursuant to this Section 10.2 is for a registered public offering involving an underwriting, the Company shall so advise the Holders as part of the notice given pursuant to Section 10.2(a)(i). In such event, the right of any Holder to registration pursuant to this Section 10.2 shall be conditioned upon such Holder's participation in the underwriting arrangements required by this Section 10.2 and the inclusion of such Holder's Registrable Securities in the underwriting, to the extent provided in this Article X. The Company (together with all Holders proposing to distribute their securities through such underwriting) shall enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by a majority in interest of the Initiating Holders (which managing underwriter shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 10.2, if the managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, the Company shall so advise all Holders of Registrable Securities and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by all Holders who have requested that Registrable Securities be included in such registration at the time of filing the registration statement; provided, however, that shares sought to be included by the Company or any other stockholder in such underwritten offering shall be excluded from such registration statement before any Registrable Securities held by the Initiating Holders shall be excluded. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. If any Holder of Registrable Securities disapproves of the terms of the underwriting, such Holder may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders.
Appears in 1 contract
Samples: Subscription Agreement (Windswept Environmental Group Inc)
Requested Registration. (a) If at any time after the earlier of (i) three (3) years after the date of the Agreement or (ii) one (1) year after the consummation of the Initial Public Offering, In case the Company shall receive from Initiating Holders a written request from Initiating Holders that the Company effect any registration registration, qualification or compliance with respect to at least 40% of such Initiating Holders' shares of Registrable SecuritiesSecurities (or any lesser number of shares if the anticipated aggregate offering price would exceed $5,000,000), the Company will:
(i1) promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii2) as soon as practicable, use commercially reasonable its best efforts to effect such registration as part of a firm commitment underwritten public offering registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements requirement or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request by delivering as are specified in a written notice to such effect to request received by the Company within twenty (20) 15 days after such Holder or Holders received the date of delivery of such written notice by from the Company pursuant to subsection (iprovided for in Section 2(a)(1) above. Notwithstanding the foregoing; provided, however, that the Company shall not be obligated to take any action to effect or complete any such registration registration, qualification or compliance pursuant to this Section 3.12:
(Ai) if In any particular jurisdiction in which the Registrable Securities proposed Company would be required to be registered execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be registered immediately on Form S-3 pursuant to Section 3.3 belowrequired by the Act;
(Bii) unless Prior to the requested registration would have an aggregate earlier of (i) December 31, 1996, or (ii) six months after the effective date of the Company's first registered public offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000its stock;
(Ciii) during During the period that begins sixty (60) starting with the date 60 days before prior to the Company’s good faith estimate 's estimated date of the filing of, and that ends one hundred eighty (180) days ending on the date six months immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, provided that the Company is actively employing applying in good faith all reasonable efforts to cause such registration statement to become effective;
(Div) after After the Company has effected two (2) registrations pursuant to this Section 3.1(a) and one such registrations have been declared or ordered effective;
(E) within twelve (12) months after the Company has effected such a registration pursuant to this Section 3.1(a2(a), and such registration has been declared or ordered effectiveeffective (subject to Section 2(b) below); or
(Fv) if If the Company furnishes shall furnish to the Initiating such Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days, the filing of a registration statement (other than a registration of securities pursuant to Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective) including for the Company’s first registered public offering of its Common Stock with the Commission whereupon such requested registration shall be accomplished pursuant to Section 3.2 hereof, or (ii) stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future and that it isat such time, therefore, essential to defer the filing of such registration statement. In such case, then the Company’s 's obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) 2 shall be deferred one or more times each for a period not to exceed 180 days from the date of receipt of written request from the request to file such registration by such Initiating Holder or Holders, provided that the Company may not exercise this deferral right more than once per twelve-month period. Subject to the foregoing clauses (A) through (F)clauses, the Company shall file a registration statement covering the Registrable Securities so requested required to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders.
(b) In the event that a registration pursuant to Section 2 is for a registered public offering involving an underwriting, the Company shall so advise the Holders as part of the notice given pursuant to Section 2(a)(1). In such event, the right of any Holder to registration pursuant to Section 2 shall be conditioned upon such Holder's participation in the underwriting arrangements required by this Section 2, and the inclusion of such Holder's Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. The Company shall (together with all Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by a majority in interest of the Initiating Holders, but subject to the Company's reasonable approval. Notwithstanding any other provision of this Section 2, if the managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Company shall so advise all Holders, and (i) shares which are not Registrable Securities (or convertible into Registrable Securities) shall first be excluded from the registration and underwriting and (ii) if such exclusion is insufficient, the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders at the time of filing of the Registration Statement. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provision, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. Notwithstanding the above, such registration shall not count as the one permitted registration pursuant to Section 2(a) above if the Holders are unable to register at least 90% of the Registerable Securities requested to be registered. If any Holder disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. The Registrable Securities and/or other securities so withdrawn shall also be withdrawn from registration, and such Registrable Securities shall not be transferred in a public distribution prior to 90 days after the effective date of such registration, or such other shorter period of time as the underwriters may require.
Appears in 1 contract
