Requested Registration. (a) If the Company receives at any time after the earlier of (i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicable, and in any event within ninety (90) days of the receipt of such request, the registration under the Act of all Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.5. (b) If the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely. (c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2: (i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective; (ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; (iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or (iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered. (d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 utilize this right more than once in any twelve (12) month period.
Appears in 2 contracts
Samples: Rights Agreement (Atroad Inc), Rights Agreement (Atroad Inc)
Requested Registration. (a) If the 2.1 In case Company receives at any time after the earlier of (i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), shall receive from an Investor a written request from that Company effect any registration with respect to any of the Holders Registrable Securities, Company shall, as soon as practicable, use reasonable best efforts to effect such registration (including 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) on Form S-3 or, if Form S-3 is not available, then on Form S-1 (or any successor forms of a majority registration statements to such Forms S-3 or S-1 or other available registration statements) and as would permit or facilitate the sale and distribution of the Registrable Securities then outstanding that the Company file a for which registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts is requested as promptly as possible and commissions, would exceed $10,000,000), then the Company shall, in any event within ten (10) 60 days of the request for registration. The registration statement filed pursuant to the request of an Investor under this Section 2.1 may include securities of Company held by other securityholders of Company who, by virtue of agreements with Company, are entitled to include their securities in any such registration, but Company shall have no absolute right to include securities for its own account in any such registration. Within ten days after receipt thereofof any such request, the Company shall give written notice of such request requested registration to all Holders other holders of Registrable Securities and shall include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the receipt of the Company's notice.
2.2 Notwithstanding the foregoing, Company shall not be obligated to file a registration statement to effect any such registration pursuant to this Section 2:
(a) unless the amount of Registrable Securities for which registration is requested is at least 500,000 shares (as adjusted for any stock split, stock dividend, recapitalization or similar event); provided, however, that if the total number of Registrable Securities held a requesting Investor (but not a transferee of Investors other than a member of Holdings) is less than 500,000 shares (as adjusted to give effect to any stock split, reverse stock split, stock dividend, recapitalization or any similar event or transaction), then such Investor (but not a transferee of Investors other than a member of Holdings) may request registration under this Section 2 as to all but not less than all of such Registrable Securities as may then be held by such requesting Investor;
(b) after Company has initiated two registrations on S-1 pursuant to this Section 2 (counting for these purposes only registrations that have been declared effective); provided that the Company shall, subject to the limitations of subsection 3.2(bSection 2.2(a), use its best efforts be obligated to effect as soon as practicablefile (i) unlimited registration statements on S-3 and (ii) unlimited additional registration statements on S-1 to the extent all Registration Expenses incurred in connection with such S-1 registration are borne by the requesting Investors.
2.3 Any offering of securities made under this Section 2 may, and in any event within ninety (90) days at the option of the receipt of such requestrequesting Investors, the registration under the Act of all Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a)a "firm commitment" underwriting. In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall Company (together with the Company as provided in subsection 3.4(e)requesting Investors) shall enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by a majority in interest the requesting Investors with the consent of the Initiating HoldersCompany, which consent shall not be unreasonably withheld. Notwithstanding any other provision of this Section 3.22, if the managing underwriter advises the Initiating Holders in writing determines that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders managing underwriter may limit the number of Registrable Securities which would otherwise to be underwritten pursuant heretoincluded in such registration to the extent required by such limitation as follows:
(a) if the registration was initiated for the account of any Investors (the "Initiating Holders"), and the number of shares reduced shall be: (A) first, any shares sought to be registered by Company for its own account; (B) second, if further reductions are required, any shares sought to be registered by holders of Registrable Securities that may securities other than the Initiating Holders who have requested to include their securities in such registration, pro rata based on the number of shares requested to be included in the underwriting shall be allocated among all Holders thereofsuch registration; and (C) third, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company if still further reductions are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effectrequired, any registration pursuant securities sought to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If be registered by the Initiating Holders propose pro rata based on the number of Shares requested to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 belowincluded in such registration; orand
(ivb) If if the registration request is subsequently withdrawn at managing underwriter has not limited the request number of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding included in such registration, Company may include securities for its own account or for the foregoing, account of others in such registration if the Company shall furnish number of Registrable Securities to Holders requesting a registration statement pursuant to this Section 3.2, a certificate signed by the President of the Company stating that be included in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to will not thereby be filed and it is therefore essential to defer the filing of such registration statement, 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 utilize this right more than once in any twelve (12) month periodlimited.
Appears in 2 contracts
Samples: Restructuring Agreement (Teletouch Communications Inc), Investor Rights Agreement (Teletouch Communications Inc)
Requested Registration. (a) If at any time following the consummation of an initial public offering of Capital Stock, the Company receives at from the Holders a written request that the Company effect a registration under the Securities Act with respect to Registrable Securities, the Company will, as expeditiously as possible, notify in writing all the Holders of such request and use its diligent best efforts to effect all such registrations (including, without limitation, the execution of an undertaking to file post-effective amendments and appropriate qualifications and approvals under the laws and regulations applicable to the Company of any time after applicable governmental agencies and authorities, including the earlier applicable blue sky or other state securities laws) as may be so requested and as would permit or facilitate the sale and distribution of (i) three (3) years after the date hereof, all or (ii) six (6) months after the effective date such portion of the first registration statement for Registrable Securities as are specified in such request, together with any Registrable Securities held by the other Holders who may desire to participate in such registrations; PROVIDED, HOWEVER, that a Holder's request may not be made within six months following the effectiveness of any registered public offering of securities Capital Stock; and PROVIDED FURTHER, that before filing any such registration statement or any amendments or supplements thereto, the Company will (x) furnish to the Holders of Registrable Securities which are to be included in such registration copies of all such documents proposed to be filed, which documents will be subject to the review of such Holders and their counsel, and (y) give the Holders of Registrable Securities to be included in such registration statement and their representatives the opportunity to conduct a reasonable investigation of the records and business of the Company (other than a and to participate in the preparation of any such registration statement relating either or any amendments or supplements thereto; and PROVIDED FURTHER, that the Company shall not be obligated to take any action pursuant to this subparagraph 2(a) if the Holders request the Company to register an amount of Shares representing less than 33% of their Shares; and PROVIDED FURTHER, that the Company shall not be obligated to take any action to effect any such registration pursuant to this subparagraph 2(a) after the Company has effected one such registration pursuant to this subparagraph 2(a) at the request of the Holders and such registration has been declared or ordered effective. With respect to any registration requested pursuant to this subparagraph 2(a), the Company may include in such registration any other shares of Capital Stock, subject to the sale restrictions set forth in subparagraph 2(c) only upon the written consent of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the shares of Registrable Securities then outstanding that being registered in the registration.
(b) Subject to subparagraph 2(a) above and the other terms and conditions contained herein, the Company shall file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request so requested to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect be registered as soon as practicable, and but in any event within ninety 90 days after (90i) days receipt of the receipt request or requests of the Holders or (ii) the date on which the Purchaser agrees, pursuant to subparagraph 2(c), on the terms and conditions of an underwriting, if applicable, as evidenced by its acceptance of a letter of intent describing such terms and conditions, whichever is later; PROVIDED, HOWEVER, that if the Company shall furnish to the 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 stockholders for such registration statement to be filed at the date filing would be required hereunder and it is therefore essential to defer the filing of such requestregistration statement, the Company shall have an additional period of not more than 60 days within which to file such registration under statement (which additional period may be extended to 90 days if such deferral will materially reduce the Act expenses of all Registrable Securities which such registration due to the Holders request elimination of the need for any special audits to be registered performed in a written request given within twenty (20) days of the mailing of connection with such notice by the Company in accordance with Section 5.5registration).
(bc) If the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(asubparagraph 2(a). In such event, if so requested in writing by the Company, the Holders shall negotiate in good faith with a nationally recognized underwriter or underwriters, or major regional underwriter or underwriters acceptable to the Holders, selected by the Company and reasonably satisfactory to the Holders with regard to the underwriting of such requested registration; PROVIDED, HOWEVER, that if the Holders have not agreed with such underwriter(s), in their discretion, as to the terms and conditions of such underwriting within 30 days following commencement of such negotiations, the Holders may select an underwriter of their choice. The right of any Holder the Holders to include his Registrable Securities in such registration pursuant to this Paragraph 2 shall be conditioned upon such the 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) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holderspursuant to this Paragraph 2. Notwithstanding Notwith standing any other provision of this Section 3.2Paragraph 2, if the underwriter advises the Initiating Holders Company in writing with a copy to the Holders that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders Company shall so advise all Holders Holders, and the Company will include in such registration up to the maximum allowed by such underwriter (x) first, as many shares as possible of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may requested to be included in by the underwriting applicable Holders, which shall be allocated among all Holders thereofthereof in proportion, including the Initiating Holders, in proportion (as nearly as practicable) , to the amount respective amounts of Registrable Securities entitled to inclusion in such registration held by such Holders at the time of filing the registration statement and (y) second, shares to be sold by the Company or other holders of Capital Stock, if any. If any Holder of Registrable Securities disapproves of the Company owned terms of the underwriting, he may elect to withdraw therefrom by each Holder written notice to the Company, the underwriter and the securities other Holders. In the event of all other shareholders and the Company are excluded entirely.
(c) In additionany such withdrawal, the Company shall not be obligated to effect, or to take will include in any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of in lieu thereof any additional shares of Registrable Securities that may which were requested to be immediately registered on Form S-3 included by a Holder and which were excluded pursuant to a request made pursuant the above-described underwriter limitation up to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registeredmaximum set by such underwriter.
(d) Notwithstanding The Company will use its best efforts to do any and all other acts which may be necessary or advisable to enable each selling Holder to dispose of the foregoingRegistrable Securities being sold including, if without limitation, furnishing to each such seller (x) the Company shall furnish to Holders requesting a number of copies of the registration statement pursuant to this Section 3.2, a certificate signed by the President and of the Company stating that in exhibits and the good faith judgment prospectus contained therein reasonably requested by each such Holder, and (y) signed counterparts, addressed to each such Holder, of the Board of Directors an opinion of the Company, it would be seriously detrimental 's counsel and a "cold comfort" letter of the Company's independent certified public accountants with respect to the Company and its shareholders for matters customarily covered in such registration statement documents delivered to be filed and it is therefore essential to defer the filing of such registration statement, 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 utilize this right more than once underwriters in any twelve (12) month periodunderwritten public offerings.
Appears in 1 contract
Requested Registration. (a) If the Company receives at any time after prior to the earlier satisfaction of (ithe Company's obligations to file and keep effective the Shelf Registrations pursuant to Section 2(a) three (3) years after the date hereof, or Xxx Xxxxxxxx (ii"Xxxxxxxx") six (6) months after is no longer the effective date Chairman of the first registration statement for a public offering of securities Board of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock optionCompany, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of Shareholders owning a majority of the Registrable Securities then outstanding that Shares, shall have the right to require the Company, by written request (the "Demand Request"), to effect an underwritten registration with respect to the Registrable Shares owned by such Shareholders and their respective Affiliates. The Company file a registration statement under will give prompt written notice (the Act covering the registration "Notice of at least thirty percent (30%Demand Request") of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts such demand for an underwritten registration to all Shareholders and commissions, would exceed $10,000,000), then thereupon the Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon expeditiously as reasonably practicable, and in any event within ninety (90) days of the receipt of such request, file a Registration Statement relating to the registration under the Securities Act of all (i) first, the Registrable Securities Shares which the Holders request Company has been so requested to be registered in register by the demanding Shareholders and (ii) second, all other Registrable Shares as to which Shareholders (other than the demanding Shareholders) shall have made a written request given to the Company for registration thereof within twenty (20) 30 days after the Notice of Demand Request, all to the extent necessary to permit the sale or other disposition in an underwritten offering by such Shareholders of the mailing of Registrable Shares to be so registered; provided; however, that (i) if such notice by registration is a Cutback Registration, the Company shall register in accordance with such registration (A) first, the Registrable Shares proposed to be sold by Shareholders and (B) second, the Registrable Shares proposed to be sold by each of Xxxxxxxx, his relatives and/or trust(s) for the benefit thereof, and Merchant Partners, L.P. and its partners holding Registrable Shares included in such Registration Statement pursuant to the Merchant Agreement; and (ii) that the Company shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 5.54(a) (A) of a number of Registrable Shares in excess of the number of Registrable Shares for which the Company is then required to effect Shelf Registrations pursuant to Section 2(a); (B) within 90 days (or such other date as may be agreed between the Company, the Shareholders, and the managing underwriter of an underwritten offering of Registrable Shares) immediately following the effective date of any Registration Statement pertaining to such an underwritten offering; (C) if the Shareholders have, within the past 270 days, caused a Requested Registration; or (D) if the demanding Shareholders have requested the registration of Registrable Shares in an aggregate price to public of less than $7,500,000.
(b) If the Holders initiating the registration request hereunder ("Initiating Holders") intend The Company agrees 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 keep each Registration Statement filed pursuant to this Section 3.2 3 continuously effective and usable for the resale of Registrable Shares for a period of up to 90 days or until all Registrable Shares included in such Registration Statement have completed the distribution described in the Registration Statement relating thereto, whichever first occurs (the "Demand Effectiveness Period"), provided, however, that during such 90-day period the Company may give notice to all such Shareholders that the Registration Statement or the prospectus included therein is no longer usable for offers and sales of Registrable Shares, in which case the 90-day period will be tolled until such time as each such Shareholder and the managing underwriter of such underwritten offering either receives copies of a supplemented or amended prospectus or is advised in writing by the Company that use of the prospectus may be resumed (it being understood that in such case the Company shall promptly comply with its obligations under Section 6(a)).
(c) The Company, if eligible to do so, shall file a Registration Statement covering the Registrable Shares so requested to be registered on Form S-2 or S-3 or any similar short-form registration under the Securities Act as soon as reasonably practicable after the receipt of the Demand Request; provided, however, that if the managing underwriter of such underwritten offering shall advise the Company in writing that, in its opinion, the use of another form of Registration Statement is of material importance to the success of such proposed underwritten offering, then such underwritten registration shall be effected on such other form.
(d) The Shareholders shall be entitled to three Requested Registrations. Notwithstanding anything contained in this Section 4, if (x) the SEC has issued a stop-order as a result of actions taken by the demanding Shareholders or (y) the demanding Shareholders give notice (the "Delaying Notice"), at any time prior to the time the Registration Statement is declared effective or prior to the last day of Demand Effectiveness Period, that the demanding Shareholders desire the Company to either withdraw the Registration Statement with the SEC, if the Registration Statement has been filed with the SEC, or postpone filing the Registration Statement, if the Registration Statement has not been filed with the SEC and the Company shall include such information is immediately able to file the Registration Statement, then, in the written notice referred to in subsection 3.2(a). In such eventcase of clause (x) herein, the right issuance of any Holder to include his 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 stop-order, or, in the underwriting case of clause (y) herein, the Delaying Notice, shall reduce by one the number of Requested Registrations to which the Shareholders are entitled.
(e) A underwritten registration requested pursuant to this Section 3 shall not be deemed to have been effected unless otherwise mutually agreed the Registration Statement relating thereto and any post- effective amendment required to commence the underwritten offering contemplated thereby has been declared effective by a majority in interest of the Initiating Holders SEC and such Holdermaintained continuously effective for the Demand Effectiveness Period.
(f) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting The demanding Shareholders shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement relating to a firm commitment underwriting in customary a form which is reasonably satisfactory to the demanding Shareholders with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities demanding Shareholders and which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days prior reasonably satisfactory to the Company's good faith estimate . The Company shall enter an underwriting agreement with a managing underwriter or underwriters of an underwritten offering containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the date agreements contained herein) by an issuer of filing common stock in underwriting agreements with respect to offerings of common stock for the account of, and ending or on a date one hundred eighty (180) days after the effective date behalf of, a registration subject to Section 3.3 hereof; provided that selling shareholders. The Company may include securities for its own account or the Company is actively employing account of any other person in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 managing underwriter so agrees and if so doing would be seriously detrimental to the Company and its shareholders for not make such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 utilize this right more than once in any twelve (12) month periodCutback Registration.
Appears in 1 contract
Requested Registration. (a) If In case the Company receives shall receive from Holders owning at least 33% of the Registrable Securities (the "Initiating Holders") at any time after the earlier Company's initial registration statement including shares on its behalf to be sold to the public is declared effective by the Commission, a written request that the Company effect any registration with respect to at least thirty-three percent (33%) of all the Registrable Securities then outstanding (or any lesser percentage if the anticipated offering price, net of underwriter's commissions, would exceed $5,000,000), the Company will:
(a) promptly give written notice of the proposed registration to all other Holders; and
(b) as soon as practicable, use its diligent best efforts to effect such registration (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) as may be so requested at the earliest possible date 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 as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company; provided that the Company shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 1.2:
(i) three 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;
(3ii) years At any time after the date hereof, or that is five years following the effective date of the Company's first registered underwritten offering to the general public of its securities for its own account;
(iiiii) Within six (6) months after immediately following the effective date of the first filing of the initial registration statement for a pertaining to an underwritten public offering of securities of the Company for its own account (other than a registration relating solely to a Commission Rule 145 transaction or a registration relating solely to employee benefit plans 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 relating either to covering the sale of securities Registrable Securities), and within four (4) months of any subsequent registration pursuant to employees of an underwritten public offering; and
(iv) After the Company has effected one registration pursuant to a stock option, stock purchase this Section 1.2 and such registration has been declared or similar plan or a SEC Rule 145 transactionordered effective. Subject to the foregoing clauses (i) through (iv) and to Section 1.2(d), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company shall file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request so requested to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect be registered as soon as practicablepracticable after receipt of the request of the Initiating Holders, and in any event within ninety (90) days of the receipt of such request; provided, the registration under the Act of all Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("Initiating Holders") intend to distribute the Registrable Securities covered -------------------- by their request by means of an underwritinghowever, they shall so advise the Company as a part of their request made pursuant to this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2such Initiating Holders, within 30 days after receipt of notice from 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 detrimental to the Company and its shareholders for such registration statement to be filed on or before the date filing would be required and it is therefore essential to defer the filing date of such registration statementfiling, 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, however that the Company may not utilize this right make such certification more than once in any twelve (12) 12 month period.
Appears in 1 contract
Requested Registration. (a) 2.1.1. If the Company receives Corporation shall receive from an Initiating Holder, at any time after the earlier of (i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)time, a written request from that the Holders of Corporation effect any registration with respect to all or a majority part of the Registrable Securities then outstanding that Securities, the Company file a registration statement under the Act covering the registration of at least thirty percent Corporation will:
(30%i) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, promptly give written notice of such request the proposed registration, qualification or compliance to all other Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect Registrable Securities; and
(ii) as soon as practicable, use its reasonable best efforts to effect such registration (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) 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 any event within ninety (90) days of the receipt of such request, together with all or such portion of the registration under the Act of all Registrable Securities which the of any Holder or Holders joining in such request to be registered as are specified in a written request given within twenty (20) days of the mailing of such notice received by the Company in accordance with Corporation within 20 days after written notice from the Corporation is given under Section 5.5.2.1.1
(ba) (i) above; provided, however, that the Corporation shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 2.1:
(A) In any particular jurisdiction in which the Corporation would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Corporation is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder;
(B) After the Corporation has effected one (1) such registration pursuant to this Section 2.1 and such registration has been declared or ordered effective or withdrawn by the Initiating Holders;
(C) If the aggregate number of all the Registrable Securities requested by all Holders initiating to be registered pursuant to such request equals less than fifty percent (50%) of the total number of outstanding Registrable Securities; or
(D) Prior to six months after the closing of the Corporation's Initial Public Offering. The registration statement filed pursuant to the request hereunder ("of the Initiating Holders") Holders may, subject to the provisions of Section 2.1.2 below, include other securities of the Corporation which are held by officers or directors of the Corporation for the Corporation's own account or which are held by persons who, by virtue of agreements with the Corporation, are entitled to include their securities in any such registration, but the Corporation and such other holders shall have no absolute right to include any of its securities in any such registration.
2.1.2. If the Initiating Holders intend to distribute the Registrable Securities covered -------------------- by their request made pursuant to Section 2.1.1 hereof by means of an underwriting, they shall so advise the Company Corporation as a part of their request made pursuant to this Section 3.2 2.1.1 and the Company Corporation shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely2.1.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 utilize this right more than once in any twelve (12) month period.
Appears in 1 contract
Samples: Registration Rights Agreement (Greenwich Technology Partners Inc)
Requested Registration. (a) If In case the Company receives shall receive from Initiating Holders, at any time after one hundred eighty (180) days following the earlier first registered public offering of the Company's Common Stock, regardless of whether such offering is the Initial Public Offering, a written request that the Company effect any registration under the Act, qualification or compliance with respect to all of the Registrable Securities then held by such Initiating Holders, or any portion thereof the sale of which is reasonably expected to yield gross proceeds to the Initiating Holders of at least $2,000,000, the Company will:
(i) three give written notice of the proposed registration, qualification or compliance to all other Holders within ten (310) years days after the date hereofreceipt thereof, or and
(ii) six use its diligent best efforts to effect, as soon as practicable, all such registrations, qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all of the Registrable Securities held by such Initiating Holders, together with all of the Registrable Securities of any Holder or Holders who joins in such request in a written request received by the Company within thirty (630) months days after such written notice is given; provided, that the Company shall not be obligated to take any action to effect any such registration, qualification, or compliance pursuant to this Section 3.1:
(A) In any particular jurisdiction in which the Company would be required to execute a general consent to service of process, to register as a dealer, or to cause any officer or employee of the Company to register as a salesman in effecting such registration, qualification or compliance;
(B) Within one hundred eighty (180) days immediately following the effective date of the first any registration statement for a pertaining to an underwritten public offering of securities of the Company for its own account;
(other than C) After the Company has effected two (2) such registrations pursuant to this Section 3.1;
(D) If the Company shall furnish to the Initiating Holders a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to a material transaction then being pursued by the Company or its stockholders for a registration statement relating either to be filed in the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000)near future, then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request Company's obligation to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicableregister, and in any event within ninety qualify or comply under this Section 3.1 shall be deferred for a period not to exceed one hundred eighty (90180) days from the date of the receipt of such request, the registration under the Act of all Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of from the mailing of such notice by Initiating Holders; provided, however, that the Company in accordance shall only be entitled to such deferral one (1) time with respect to each registration pursuant to this Section 5.5.3.1
(b) If Subject to the Holders initiating foregoing, the Company will use its best efforts to file a registration request hereunder ("Initiating Holders") intend to distribute statement covering the Registrable Securities covered -------------------- by their as soon as practicable after receipt of the request by means or requests of an underwriting, they the Initiating Holders.
(c) The Initiating Holders shall so advise the Company as a part of include in their request made pursuant to this Section 3.2 3.1 the name, if any, of the underwriter or underwriters that such Initiating Holders would propose, with the consent of the Company (which consent shall not be unreasonably withheld), to employ in connection with the public offering proposed to be made pursuant to the registration requested, and the Company shall include such information in the written notice referred to in subsection 3.2(aclause (i) of Section 3.1(a). In such event, the The right of any Holder to include his Registrable Securities in such registration pursuant to this Section 3.1 shall be conditioned upon on such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting underwriting. The Company shall (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holdersmanner set forth above. Notwithstanding any other provision of this Section 3.23. 1, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting registration and underwriting, as determined by the underwriters, shall be allocated among all Holders thereofthereof in proportion, including the Initiating Holders, in proportion (as nearly as practicable) , to the amount respective amounts of Registrable Securities of the Company owned requested to be registered by each Holder and the securities of all such Holders (or in such other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of manner as the Holders of requesting registration may elect in a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 written notice to the Company and its shareholders for signed by all such registration statement to be filed and it is therefore essential to defer Holders). No Registrable Securities excluded from the filing of such registration statement, the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt underwriting by reason of the request of the Initiating Holders; provided, however, that the Company may not utilize this right more than once underwriter's marketing limitation shall be included in any twelve (12) month periodsuch registration.
Appears in 1 contract
Samples: Stockholders' Agreement (Iomed Inc)
Requested Registration. (a) If the Company receives at any time after the earlier of (i) three (3) years on or after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), shall receive a written request from the Holders of a majority of the then outstanding Registrable Securities then outstanding (the “Requesting Holders”) that the Company file effect a registration statement under the Act covering the registration of at least thirty percent (30%) Registration with respect to all or a part of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000“Demand Registration”), then the Company shall, will:
(i) within ten (10) days of the receipt thereof, Business Days give written notice of such request the proposed Demand Registration to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect other Holders; and
(ii) as soon as practicable, and in use commercially reasonable efforts to effect such Demand Registration on Form S-3 (or any event within ninety successor form thereto) or another appropriate form for such purpose if the Company is not then eligible to use Form S-3 (90) days which such Demand Registration may at the option of the receipt Requesting Holders be a Shelf Registration Statement) to 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 registration under the Act of all Registrable Securities which the Holders of any other Holder joining in such request to be registered as are specified in a written request given within twenty (20) days of the mailing of such notice received by the Company in accordance with Section 5.5.
within ten (b10) If the Holders initiating the registration request hereunder ("Initiating Holders") intend to distribute the Registrable Securities covered -------------------- by their request by means of an underwriting, they shall so advise Business Days after written notice from the Company as a part of their request made is given under Section 2(a)(i) above; provided that the Company shall only be obligated to effect five (5) Demand Registrations pursuant to this Section 3.2 2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, :
(A) any registration such Demand Registration pursuant to this Section 3.2:2, if the Registrable Securities requested by all Holders to be registered pursuant to any such request have an anticipated aggregate public offering price (after deduction of any Selling Expenses) of less than $500,000; and
(iB) After the Company has effected two (2) registrations any such Demand Registration pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days prior to the Company's good faith estimate 2 of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of any Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the if such Registrable Securities to be registeredare then covered by another effective Registration Statement.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 utilize this right more than once in any twelve (12) month period.
Appears in 1 contract
Samples: MDP Registration Agreement (Ruths Hospitality Group, Inc.)
Requested Registration. (a) If the Company receives at shall receive from Initiating Holders a written request that the Company effect any time after registration with respect to all or any portion of the earlier of issued and outstanding Registrable Securities held by Initiating Holders, the Company shall:
(i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, promptly give written notice of such request the proposed registration to all Holders and shallother Holders, subject which notice shall include the approximate date that the registration statement is expected to be filed with the limitations of subsection 3.2(b), Commission; and
(ii) as soon as practicable use its best efforts to effect as soon as practicableregister (including, and in any event within ninety (90) days of the receipt of such requestwithout limitation, the registration under the Act execution of an undertaking to file post-effective amendments and any other governmental requirements) all Registrable Securities which the Initiating Holders request to be registered in a written and all Registrable Securities which the other Holders request given to be registered within twenty (20) days after receipt of such written notice from the Company; provided, that the Company shall not be obligated to file a registration statement pursuant to this Section 5:
(A) in any particular state in which the Company would be required to execute a general consent to service of process in effecting such registration;
(B) within 120 days following the effective date of any registered offering of the mailing Company's securities to the general public in which the Holders of Registrable Securities shall have been able effectively to register all Registrable Securities as to which registration shall have been requested; or
(C) after the Company has effected two such notice registrations pursuant to this Section 5 and such registrations have been declared or ordered effective, except as provided in Section 7. Subject to the foregoing clauses (A) through (C), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practical, but in any event within forty-five (45) days after receipt of the request or requests of the Initiating Holders and shall use reasonable best efforts to have such registration statement promptly declared effective by the Commission whether or not all Registrable Securities requested to be registered can be included; provided, however, that if the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in accordance with Section 5.5.the good faith judgment of the Board of Directors it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed within such forty-five (45) day period and it is therefore essential to defer the
(b) If the Initiating Holders initiating the registration request hereunder ("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 this Section 3.2 and request. In such event or if an underwriting is required by subsection 5(c), the Company shall include such information in the written notice referred to in subsection 3.2(a5(a)(i). In either such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice for the underwriting of all of such Registrable Securities being registered. The right of any Holder to include his Registrable Securities in such registration pursuant to Section 5 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) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holdersunderwriting. Notwithstanding any other provision of this Section 3.25, 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 Initiating Holders Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant heretoHolders, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 utilize this right more than once in any twelve (12) month period.Registrable
Appears in 1 contract
Requested Registration. (a) If the Company receives shall receive from Initiating Holders a written request that the Company effect any registration with respect to all or at any time after least 51% of the earlier of outstanding Registrable Securities, the Company shall:
(i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, promptly give written notice of such request the proposed registration to all Holders and shall, subject to the limitations of subsection 3.2(b), other Holders; and
(ii) as soon as practicable use its best efforts to effect register (including, without limitation, the execution of an undertaking to file post-effective amendments and any other governmental requirements) all Registrable Securities that the Holders request to be registered within thirty (30) days after receipt of such written notice from the Company; provided that the Company shall not be obligated to file a registration statement pursuant to this Section 4:
(A) prior to 120 days after the closing of the Private Placement;
(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; or
(C) after the Company has effected one such registration pursuant to this Section 4 and such registration has been declared or ordered effective. Subject to the foregoing clauses (A) through (C), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicablepractical, and but in any event within ninety (90) days after receipt of the receipt request or requests of the Initiating Holders and shall use reasonable best efforts to have such request, registration statement promptly declared effective by the registration under the Act of Commission whether or not all Registrable Securities which the Holders request requested to be registered can be included; provided, however, that if the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in a written request given the good faith judgment of the Board of Directors it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed within twenty such ninety (2090) days period and it is therefore essential to defer the filing of such registration statement, the Company shall have an additional period of not more than ninety (90) days after the expiration of the mailing of initial ninety-day (90-day) period within which to file such notice by registration statement; provided, that during such time the Company in accordance with Section 5.5may not file a registration statement for securities to be issued and sold for its own account.
(b) If the Initiating Holders initiating the registration request hereunder ("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 this Section 3.2 and request. In such event or if any underwriting is required by subsection 4(c), the Company shall include such information in the written notice referred to in subsection 3.2(a4(a)(i). In either such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice. The right of any Holder to include his Registrable Securities in such registration pursuant to Section 4 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) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holdersunderwriting. Notwithstanding any other provision provisions of this Section 3.24, 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 Initiating Holders Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant heretoHolders, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders thereofthereof in proportion, including the Initiating Holders, in proportion (as nearly as practicable) , to the amount respective amounts of Registrable Securities of the Company owned held by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 securities to be included in such registration statement to be offered by the Company, its officers and employees shall be excluded from the registration statement prior to the exclusion of any Registrable Securities held by the Holders. If any Holder disapproves of the terms of the underwriting, he may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. 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 may not utilize this shall offer to all holders who have included Registrable Securities in the registration the right more than once to include additional Registrable Securities in any twelve (12) month periodthe 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.
Appears in 1 contract
Requested Registration. (a) If the Company receives at At any time following the 180th day after the earlier of (i) three (3) years after the date hereof, or (ii) six (6) months after the effective date consummation of the first registration statement for a Company's initial public offering of securities shares of Common Stock, any Major Purchaser may deliver to the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from that the Holders Company effect the registration under the Securities Act of a majority all or part of the Registrable Securities then outstanding that held by such person (a "REQUESTED REGISTRATION"). Upon the delivery of such request, the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and shall, subject to the limitations of subsection 3.2(b), will use its best efforts to effect as soon as practicable, and in any event within ninety (90) days of the receipt of such request, the registration under the Securities Act of all the Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of the mailing of such notice by that the Company has been so requested to register in accordance with this Section 5.5.
2(a) within sixty (b60) If the Holders initiating the registration days after receipt of such request hereunder or within thirty ("Initiating Holders"30) intend to distribute the Registrable Securities covered -------------------- by their days after receipt of such request by means of an underwriting, they shall so advise if the Company as is qualified to file a part of their request made pursuant to this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(aregistration statement on Commission Form S-3 or any successor or similar short-form registration statement (collectively, "COMMISSION FORM S-3"). In such event; PROVIDED, the right of any Holder to include his 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 HOWEVER, that (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holderi) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration effect a Requested Registration pursuant to this Section 3.2:
2(a) during the 180 day period immediately following the commencement of a public offering of the Company's equity securities and (iii) After the Company has effected two (2) shall not be obligated to effect a Requested Registration on Commission Form S-1 if the anticipated aggregate offering price of the Registrable Securities and other securities to be sold in such registration is less than $1,000,000 unless the requesting Major Purchasers pay the Registration Expenses incurred with respect to such registration. The Company must effect an unlimited number of registrations pursuant to this Section 3.2 and subdivision (a) to the extent such registrations have been declared or ordered effective;
may be effected on Commission Form S-3, but the Company shall not be obligated to effect more than three Requested Registrations hereunder other than on Commission Form S-3. Subject to subdivision (ii) During f), the period starting with Company may include in such Requested Registration other securities of the date sixty (60) days prior to Company for sale, for the Company's good faith estimate account or for the account of any other person, subject to the managing underwriter, if any, determining that the inclusion of such additional shares will not interfere with the orderly sale of the date of filing of, and ending on underwritten securities at a date one hundred eighty (180) days after price range acceptable to the effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to Holder making a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to under this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 utilize this right more than once in any twelve (12) month period2(a).
Appears in 1 contract
Requested Registration. (a) If In case the Company receives at any time after the earlier of (i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), shall receive from Initiating Holders a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration effect any registration, qualification or compliance with respect to shares of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the with an anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed of ten million dollars ($10,000,000), then the Company shall, within ten will:
(10i) days of the receipt thereof, promptly give written notice of such request the proposed registration, qualification or compliance to all Holders and shallother Holders, subject except for the Founders, who shall not be entitled to the limitations of subsection 3.2(b)registration under this Section 5.1; and
(ii) as soon as practicable, use its best efforts to effect such 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 soon may be so requested and as practicable, would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in any event within ninety (90) days of the receipt of such request, together with all or such portion of the registration under the Act of all Registrable Securities which the of any Holder or Holders joining in such request to be registered as are specified in a written request given within twenty (20) days of the mailing of such notice received by the Company in accordance with Section 5.5within 20 days after receipt of such written notice from the Company.
(b) If Notwithstanding the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In additionforegoing, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.25.1:
(i) After In any particular jurisdiction in which the Company has effected two (2) registrations pursuant would be required to this Section 3.2 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 such registrations have been declared or ordered effectiveexcept as may be required by the Securities Act;
(ii) Prior to the earlier to occur of: (x) December 31, 2001 and (y) six months after the effective date of the Company's first registered public offering of shares of its Common Stock;
(iii) During the period starting with the date sixty (60) days prior to the Company's good faith estimate of the estimated date of filing of, and ending on a the date one hundred eighty six (1806) days after months immediately following the effective date of, any registration statement pertaining to securities of the Company (other than a registration subject of securities in a Rule 145 transaction or with respect to Section 3.3 hereof; an employee benefit plan, or any other registration which is not appropriate for the registration of Registrable Securities), provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iiiiv) After the Company has effected two such registrations pursuant to this subparagraph 5.1(a), and such registrations have been declared or ordered effective and remain effective until the earlier to occur of (x) 90 days or (y) the sale of all the securities offered pursuant to each such registration;
(v) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to such Initiating Holders requesting a registration statement pursuant to this Section 3.2, 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 or its shareholders for such a registration statement to be filed and it in the near future, then the Company's obligation to use its best efforts to register, qualify or comply under this Section 5.1 shall be deferred for a period not to exceed 90 days from the date of receipt of written request from the Initiating Holders, provided that the Company may not exercise this deferral right for more than 150 days in any one year period; or
(vi) If such registration, qualification or compliance is therefore essential proposed to defer be part of a firm commitment underwritten public offering with underwriters not reasonably acceptable to the filing of such registration statementCompany. Subject to the foregoing clauses (i) through (vi), the Company shall have file a registration statement covering the right Registrable Securities so requested to defer such filing for a period of not more than ninety (90) days be registered as soon as practicable after receipt of the request or requests of the Initiating Holders; provided, however, that the Company may not utilize this right more than once in any twelve (12) month period.
Appears in 1 contract
Samples: Investor Rights Agreement (Marvell Technology Group LTD)
Requested Registration. If (a) If during the three-year period ---------------------- following an IPO, the Shareholders have not had the opportunity to sell their Registrable Securities as part of a registration, whether pursuant to (S)2, above, or otherwise, (b) the Company receives at any time after the earlier of (i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of Shareholders then owning a majority of the all Registrable Securities then outstanding owned by all Shareholders a request that the Company file a registration statement under register their Registrable Securities, and (c) such request is given during the Act covering period beginning on the registration last day of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts such three-year period and commissions, would exceed $10,000,000)ending 90 days thereafter, then the Company shall, within ten :
(10i) days of the receipt thereof, Promptly give written notice of such request to all Holders and shall, subject to the limitations of subsection 3.2(bShareholders (other than those making such request); and
(ii) As soon as reasonably practicable, use its best all commercially reasonable efforts to effect such registration as soon may be so requested and as practicablewould permit or facilitate the sale and distribution of such portion of such Registrable Securities as are specified in such request, and in any event within ninety (90) days together with such portion of the Registrable Securities of any Shareholders joining in such request as are specified in a request given within 20 days after receipt of such requestnotice from the Company, the registration under the Act of all Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance together with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("Initiating Holders") intend to distribute the Registrable Securities covered -------------------- held by their request by means of an underwriting, they shall so advise any other Holders who are included in such registration. If the Company as a part underwriter managing the offering advises the Holders who have requested inclusion of their request made pursuant to this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors considerations require a limitation of on the number of shares to offered, such limitation shall be underwritten, then the Initiating imposed pro rata among such Holders shall so advise all Holders who requested inclusion of Registrable Securities which would otherwise be underwritten in such registration (whether pursuant heretoto this agreement, and any other similar agreement, or otherwise), in proportion to the number of shares of Registrable Securities that may requested to be included in the underwriting shall be allocated among all Holders thereofregistered by them, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirelyrespectively.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose The underwriter of shares of Registrable Securities that may any underwriting requested under this (S)3 shall be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, a certificate signed selected 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 utilize this right more than once in any twelve (12) month period.
Appears in 1 contract
Samples: Registration Rights Agreement (American Dental Partners Inc)
Requested Registration. (a) If At any time following an initial public offering of the Common Stock, or any security issued in exchange for or as replacement of the Common Stock pursuant to a registration under the Securities Act (the "IPO"), if the Company receives at shall receive from an Initiating Investor Holder a written request that the Company effect any time after registration with respect to all or a part of the earlier of Registrable Investor Securities, the Company will:
(i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, promptly give written notice of such request the proposed registration, qualification or compliance to all Holders of Registrable Securities and shall, subject to the limitations all Inside Holders of subsection 3.2(b), use its best efforts to effect Registrable Inside Securities; and
(ii) as soon as practicable, use its diligent best efforts to effect such registration (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) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Investor Securities as are specified in any event within ninety (90) days of the receipt of such request, together with all or such portion of the registration under the Act of all Registrable Securities which the and Registrable Inside Securities of any Holders or Inside Holders joining in such request to be registered as are specified in a written request given within twenty (20) days of the mailing of such notice received by the Company within 10 business days after written notice from the Company is given under Section 3.2(a)(i) above; provided that the Company shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 3.2:
A. In any particular jurisdiction in accordance 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 or applicable rules or regulations thereunder;
B. After the Company has effected one (1) such registration pursuant to this Section 3.2 and such registration has been declared or ordered effective and the sale of at least fifty percent (50%) (it being agreed that if less than such amount shall have been sold due to any limitation placed by an underwriter on the number of shares to be sold, the Company will effect one (1) additional registration on the same terms and conditions) of such Registrable Investor Securities shall have closed; or
C. If the Registrable Investor Securities, Registrable Securities and Registrable Inside Securities requested by all Investor Holders, Holders and Inside Holders to be registered pursuant to such request have an anticipated aggregate public offering price (before any underwriting discounts and commissions) (the "Aggregate Offering Price") of less than $3,500,000. The registration statement filed pursuant to the request of the Initiating Investor Holder may, subject to the provisions of Section 3.2(b) below, include other securities of the Company or securities which are held by Persons who, by virtue of agreements with the Company, are entitled to include their securities in any such registration. The registration rights set forth in this Section 5.53 shall be assignable, in whole or in part, to any transferee of Common Stock (who shall be bound by all obligations of this Section 3).
(b) If the Holders initiating the registration request hereunder ("Initiating Holders") intend Investor Holder intends to distribute the Registrable Investor Securities covered -------------------- by their its request by means of an underwriting, they it shall so advise the Company as a part of their its request made pursuant to Section 3.2. If holders of securities of the Company other than Registrable Investor Securities who are entitled, by contract with the Company or otherwise, to have securities included in such a registration (the "Other Shareholders") request such inclusion, the Investor Holder shall offer to include the securities of such Other Shareholders in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Section 3.2 3. The Investor Holder, Holders and Inside Holders whose shares are to be included in such registration and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders together with all Other Shareholders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)underwriting) 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 HoldersInvestor Holder and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 3.2, if the underwriter representative advises the Initiating Holders Investor Holder in writing that marketing factors require a limitation of on the number of shares to be underwritten, then the securities of the Company held by Other Shareholders, other than the Holders and Inside Holders, shall be excluded from such registration to the extent so required by such limitation. If, after the exclusion of such shares, further reductions are still required, the number of shares included in the registration by each Holder and Inside Holder shall be reduced on a pro rata basis (based on the number of shares held by such Holder and Inside Holder) by such minimum number of shares as is necessary to comply with such request. If, after the exclusion of such shares, further reductions are still required, the number of shares included in the registration by the Investor Holder shall be reduced by such minimum number of shares as is necessary to comply with such request. No Registrable Investor Securities or any other securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If the Investor Holder or any Other Shareholder who has requested inclusion in such registration as provided above disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the underwriter and the Initiating Holders Investor Holder. The securities so withdrawn shall so advise all Holders also be withdrawn from registration. If the underwriter has not limited the number of Registrable Investor Securities to be underwritten, the Company may include its securities for its own account in such registration if the representative so agrees and if the number of Registrable Investor Securities, Registrable Securities and Registrable Inside Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be have been included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may and underwriting will not thereby be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registeredlimited.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 utilize this right more than once in any twelve (12) month period.
Appears in 1 contract
Requested Registration. (a) If the Company receives at At any time after the earlier of (i) three (3) years after the date hereof, upon written request by the Holder to the Company that the Company effect the registration under the Securities Act of all or part of the Registrable Securities owned by the Holder (a "Requested Registration"), the Company will use its best efforts to effect the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register by the Holder within one hundred twenty (120) days after receipt of such request or within sixty (60) days after receipt of such request with respect to a Requested Registration, if the Company is qualified to file a registration statement on SEC Form S-3 or any successor or similar short-form registration statement (collectively, "SEC Form S- 3"); provided, however, that the Company shall not be obligated to effect a Requested Registration pursuant to this subdivision (b), (A) unless with respect to a Requested Registration, the shares to be registered represent at least two percent (2%) of the Common Stock then outstanding and the anticipated aggregate offering price of the Registrable Securities to be sold is at least $1,000,000, in the case of registration on XXX Xxxx X-0, or at least $2,000,000 in the case of other registrations, or (iiB) six during the 180 day period immediately following the consummation of any previous Requested Registration pursuant to this Section. Subject to all limitations in the preceding sentence, the Company must effect an unlimited number of Requested Registrations pursuant to this subdivision (6b) months after to the effective date of extent such Requested Registrations may be effected on SEC Form S-3, but the first registration statement for a public offering of Company shall not be obligated to effect more than three Requested Registrations hereunder other than on SEC Form S-3. Subject to subdivision (g), the Company may include in such Requested Registration other securities of the Company (for sale, for the Company's account or for the account of any other than a registration statement relating either person, if there is no underwriter and, if there is an underwriter, if and to the extent that the managing underwriter determines that the inclusion of such additional shares will not interfere with the orderly sale of the underwritten securities at a price range acceptable to employees the requesting Holder. Upon receipt of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that pursuant to this subdivision (b), the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, shall promptly give written notice of such request to all Holders and shall, subject to the limitations holders of subsection 3.2(b), use its best efforts to effect as soon as practicableCommon Stock, and all such holders shall be afforded the opportunity to join in any event within ninety (90) days such request. The Company will include in the Requested Registration such number of securities of the receipt of holders joining in such request, the registration under the Act of all Registrable Securities which the Holders request to be registered as are specified in a written request given within twenty (20) days of by the mailing of such notice holders received by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer such filing for a period of not more than ninety (90) within 20 days after receipt of such written notice from the request of the Initiating Holders; provided, however, that the Company may not utilize this right more than once in any twelve (12) month periodCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Orthostrategies Acquisition Corp)
Requested Registration. (a) If the Company receives at At any time after the earlier of (i) three (3) years after the date hereof, upon written request by the Holder to the Company that the Company effect the registration under the Securities Act of all or part of the Registrable Securities owned by the Holder (a "Requested Registration"), the Company will use its best efforts to effect the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register by the Holder within one hundred twenty (120) days after receipt of such request or within sixty (60) days after receipt of such request with respect to a Requested Registration, if the Company is qualified to file a registration statement on SEC Form S-3 or any successor or similar short-form registration statement (collectively, "SEC Form S-3"); provided, however, that the Company shall not be obligated to effect a Requested Registration pursuant to this subdivision (b), (A) unless with respect to a Requested Registration, the shares to be registered represent at least two percent (2%) of the Common Stock then outstanding and the anticipated aggregate offering price of the Registrable Securities to be sold is at least $1,000,000, in the case of registration on XXX Xxxx X-0, or at least $2,000,000 in the case of other registrations, or (iiB) six during the 180 day period immediately following the consummation of any previous Requested Registration pursuant to this Section. Subject to all limitations in the preceding sentence, the Company must effect an unlimited number of Requested Registrations pursuant to this subdivision (6b) months after to the effective date of extent such Requested Registrations may be effected on SEC Form S-3, but the first registration statement for a public offering of Company shall not be obligated to effect more than three Requested Registrations hereunder other than on SEC Form S-3. Subject to subdivision (g), the Company may include in such Requested Registration other securities of the Company (for sale, for the Company's account or for the account of any other than a registration statement relating either person, if there is no underwriter and, if there is an underwriter, if and to the extent that the managing underwriter determines that the inclusion of such additional shares will not interfere with the orderly sale of the underwritten securities at a price range acceptable to employees the requesting Holder. Upon receipt of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that pursuant to this subdivision (b), the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, shall promptly give written notice of such request to all Holders and shall, subject to the limitations holders of subsection 3.2(b), use its best efforts to effect as soon as practicableCommon Stock, and all such holders shall be afforded the opportunity to join in any event within ninety (90) days such request. The Company will include in the Requested Registration such number of securities of the receipt of holders joining in such request, the registration under the Act of all Registrable Securities which the Holders request to be registered as are specified in a written request given within twenty (20) days of by the mailing of such notice holders received by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer such filing for a period of not more than ninety (90) within 20 days after receipt of such written notice from the request of the Initiating Holders; provided, however, that the Company may not utilize this right more than once in any twelve (12) month periodCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Langer Partners LLC)
Requested Registration. (a) If the Company receives shall receive from Initiating Holders at any time after or times not before the earlier of (i) three (3) years after the date hereof, Closing Date or (ii) six (6) months one year after the effective date closing of the first registration statement for a firm commitment, underwritten public offering of the Company's securities registered under the Securities Act of 1933, as amended (the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction"IPO"), a written request from that the Holders of Company effect any registration with respect to all or a majority part of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated having an aggregate offering price, net of underwriting discounts and commissionsexpenses, would equal to or exceeding $10.50 per share of Class B Common Stock (as adjusted for any stock dividends, combinations or splits with respect to such shares) and the aggregate proceeds of which (after deduction for underwriter's discounts and expenses related to the issuance) exceed $10,000,000), then 2 million the Company shall, within ten will:
(10i) days of the receipt thereof, promptly give written notice of such request the proposed registration to all Holders and shall, subject to the limitations of subsection 3.2(b)other Holders; and
(ii) as soon as practicable thereafter, use its best efforts to effect as soon as practicablesuch registration (including, without limitation, filing post- effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and appropriate compliance with the Securities Act) and as would permit and facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in any event within ninety (90) days of the receipt of such request, together with all or such portion of the registration under the Act of all Registrable Securities which the of any Holder or Holders joining in such request to be registered as are specified in a written request given received by the Company within twenty (20) days after such written notice from the Company is mailed or delivered. The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(A) 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;
(B) After the Company has initiated one such registration pursuant to this Section 1.3(a) (counting for these purposes only a registration which has been declared or ordered effective and pursuant to which securities have been sold or a registration which has been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.5 hereof and would, absent such election, have been required to bear such expenses); or
(C) During the period starting from the date sixty (60) days prior to the Company's good faith estimate of the mailing date of filing of, and ending on a date one hundred and eighty (180) days after the date of an underwriting agreement relating to, a Company-initiated registration; provided that the Company is actively employing in good faith reasonable efforts to cause such notice registration statement to become effective;
(D) If the IPO has not taken place, if the Initiating Holders do not request such offering be firmly underwritten by an underwriter selected by the Initiating Holders (subject to the consent of the Company, which consent will not be unreasonably withheld); or
(E) If the IPO has not taken place, if the Company and the Initiating Holders are unable to obtain the commitment of the underwriter described in accordance with Section 5.5clause (D) to firmly underwrite the offer.
(b) If Subject to the Holders initiating foregoing clauses (A) through (E), the Company shall file a registration request hereunder ("Initiating Holders") intend to distribute statement covering the Registrable Securities covered -------------------- by their so requested to be registered as soon as practicable after receipt of the request by means or requests of an underwritingthe Initiating Holders; provided, they shall so advise however, that if (i) in the Company 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 part result, that it is essential to defer the filing of their request made pursuant such registration statement at such time, or in the good faith judgement of the Board of Directors of the Company, such registration should be delayed due to this Section 3.2 the timing of the Company's annual audit and (ii) the Company shall include furnish to such information Holders a certificate signed by the President or Chief Executive Officer of the Company stating that in the written notice referred 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 subsection 3.2(a)the near future and that it is, therefore, essential to defer the filing of such registration statement, or, that such registration should be delayed due to the timing of the Company's annual audit, whichever is applicable, then the Company shall have the right to defer such filing for a collective period during any single calendar year of not more than one hundred and twenty (120) days after the receipt of the request of the Initiating Holders and, provided further, that the Company shall not defer its obligations in this manner more than twice in any twelve-month period. In If all the Holders are allowed to include all Registrable Securities that such eventHolders requested be included in the registration statement filed pursuant to the request of the Initiating Holders, the registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of this Section 1.3(b) and Section 1.11 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. The Company shall pay the reasonable fees and disbursements of one counsel selected by a majority in interest of the Holders in connection with any registration under this Section 1.3.
(c) The right of any Holder to include his Registrable Securities in such registration pursuant to this Section 1.3 shall be conditioned upon such Holder's Holders' 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 HolderHolder with respect to such participation and inclusion) to the extent provided herein. All A Holder may elect to include in such underwriting all or a part of the Registrable Securities he holds.
(d) If the Company shall request inclusion in any registration pursuant to this Section 1.3 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to this Section 1.3, and if all of the Holders are allowed to include all Registrable Securities that such Holders requested to be included in the registration statement filed pursuant to the request of the Initiating Holders, 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 1(including this Section 1.3). The Company shall, together with all Holders and other persons proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) underwriting, 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 HoldersHolders (subject to the Company's consent, which shall not be unreasonably withheld). Notwithstanding any other provision of this Section 3.21.3, if the underwriter representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation of on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may to be included in the underwriting or registration shall be allocated among all Holders thereofas set forth in Section 1.11 hereof. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, including such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, in proportion (as nearly as practicable) to the amount of . 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 shares are so withdrawn from registration and if the number of the Company owned by each Holder and the securities shares to be included in such registration was previously reduced as a result of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration marketing factors pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days prior to the Company's good faith estimate of the date of filing of1.3(d), and ending on a date one hundred eighty (180) days after the effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if then the Company shall furnish offer to all Holders requesting a registration statement pursuant who have retained rights to this Section 3.2, a certificate signed by the President of the Company stating that include securities in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with 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 utilize this right more than once shares to be allocated among such Holders requesting additional inclusion in any twelve (12) month periodaccordance with Section 1.11.
Appears in 1 contract
Samples: Investors' Rights Agreement (Tier Technologies Inc)
Requested Registration. (a) The Holders shall have the "demand" registration rights with respect to the Registrable Securities provided in this Section 5.2. Any Holder or Holders may exercise their demand registration rights at any time or times after the date which is nine months from the date of the Closing. If the Company receives at shall receive from any time after Holder or Holders holding in the earlier of (i) three (3) years after the date hereof, or (ii) six (6) months after the effective date aggregate not fewer than 60% of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Registrable Securities, a written request from that the Holders of Company effect any registration with respect to all or a majority part of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated having an aggregate offering price, net of underwriting discounts and commissionsexpenses, would exceed equal to or exceeding $10,000,000)500,000, then the Company shallwill, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and shall, subject to the limitations of subsection 3.2(b)as soon as practicable, use its best efforts to effect as soon as practicablesuch registration (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and in any event within ninety (90appropriate compliance with the Securities Act) days as would permit or facilitate the sale and distribution of the receipt all or such portion of such request, the registration under the Act of all Registrable Securities which the as are specified in such request. The Holders request shall be entitled to be registered in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.5exercise these demand registration rights only twice.
(b) If the Holders initiating the The Company shall file a registration request hereunder ("Initiating Holders") intend to distribute statement covering the Registrable Securities covered -------------------- by their so requested to be registered as soon as practicable after receipt of the request by means or requests of an underwritingthe Holder or Holders; provided, they shall so advise 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 as a part of their request made pursuant to this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right Board of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities Directors of the Company owned by each Holder concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to the Holder or Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed in the near future and that it is therefore is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such disclosure would be seriously detrimental, provided that the Company may not defer the filing for a period of not more than ninety (90) 180 days after receipt of the request of the Initiating Holder or Holders; provided, howeverand, provided further, that the Company may shall not utilize defer its obligation in this right manner more than once in any twelve (12) twelve-month period. The registration statement filed pursuant to the request of the Holder or Holders may 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.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Multicom Publishing Inc)
Requested Registration. (a) If either Mayo or the Investor shall notify the Company receives at after December 31, 1996, that he or it proposes to sell or transfer any time after the earlier of (i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that and requests registration thereof, the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, shall promptly give written notice of such request to all other Holders and shall, subject to comply with paragraph 10.2(b) below. If the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicable, and in any event within ninety (90) days managing underwriter of the receipt of such request, the registration under the Act of all Registrable Securities which the Holders request to be offering being registered in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 paragraph 10.2
(unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holdera) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereofof Registrable Securities in proportion, including the Initiating Holders, in proportion (as nearly as practicable) , to the amount respective amounts thereof held by or issuable to such Holders at the time of Registrable Securities of filing the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company statement for which registration has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days prior demanded. Any provision herein to the Company's good faith estimate of the date of filing ofcontrary notwithstanding, and ending on a date one hundred eighty (180) days after the effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer such filing for a period request registration shall be limited to two registrations initiated by each of not more than ninety (90) days after receipt of Mayo and the request of the Initiating HoldersInvestor; provided, however, that (i) no such request shall require a registration statement to become effective prior to 180 days after the effective date of a registration statement that shall have been filed by the Company may covering a firm commitment underwritten public offering of Common Stock in which the Company's shares are to be traded on NASDAQ-NMS or listed on the American Stock Exchange or the New York Stock Exchange, if the Company shall theretofore have given written notice of such registration statement to the Holders of the Registrable Securities pursuant to this paragraph 10.2(a) or Section 10.6 and shall have thereafter pursued the preparation, filing and effectiveness of such registration statement with diligence; and (ii) the Company shall not utilize this be required to effect such a registration unless the Holder(s) requesting registration propose to dispose of Registrable Securities having an aggregate disposition price (before deduction of underwriting discounts and expenses of sale) of at least $3,000,000. A right more than once to demand registration shall be deemed exercised when the registration statement is effective. If and when the rights hereunder are sought to be exercised, the Company shall notify all other Holders.
(b) Upon a demand under paragraph 10.2(a) the Company shall (i) file within 90 days a registration statement on the appropriate form referred to in paragraph 10.2(c) (or any twelve form adopted in lieu thereof) under the Act of the Registrable Securities that the Company has been requested to register including any requests of Holder(s) subsequent to notice from the Company to the Holders as provided in (12a) month period.above; (ii) if the offering is pursuant to an underwriting agreement (the underwriter to be the person selected by the Holders of the majority of the Securities to be registered), enter into an
Appears in 1 contract
Samples: Investment and Stockholders Agreement (Clearview Cinema Group Inc)
Requested Registration. (a) If Upon the written request of the Subscriber that the Company receives effect a shelf registration under the Securities Act of shares of Common Stock held by the Subscriber and specifying the intended method of disposition thereof, the Company shall use its best efforts to effect such registration under the Securities Act of the requested number of shares of Common Stock (the "Requested Shares") to the extent required to permit the disposition (in accordance with the intended methods as specified by the Subscriber) of the Requested Shares pursuant to Rule 415; provided, however, that (i) the Company shall not be required to effect any such registration at any time after when an exemption from registration is otherwise available to the Subscriber affording the Subscriber the right to dispose of all of the shares of Common Stock held by the Subscriber; (ii) the Company shall be required to effect no more than one (1) registration(s) for the Subscriber in any twelve month period (including any registration effected pursuant to Section 4.2 hereof); and (iii) the Company shall not be required to effect a registration under this Section 4.1 if it does not qualify for use of Form S-3 (or any successor form) for the registration of the Requested Shares. Any registration requested pursuant to this Section 4.1 shall be effected by the filing of a registration statement on Form S-3 (or any other form that includes substantially the same information as would be required to be included in a registration statement on such forms as presently constituted, other than a registration statement relating to offers to employees pursuant to plans or of securities to be issued in business combinations). The Company shall use its reasonable efforts to keep such registration statement continuously effective until the earlier of (i) three (3) years after such time as RMS shall have sold all of the date hereof, Requested Shares or (ii) six (6) months after the effective date all of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company Shares may be sold pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction144(k), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicable, and in any event within ninety (90) days of the receipt of such request, the registration under the Act of all Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 utilize this right more than once in any twelve (12) month period.
Appears in 1 contract
Requested Registration. i. Subject to the other provisions of this Agreement, Holdings and Investments shall have the right (aa "Request Right") If to require the Company receives at any time after the earlier to effect an aggregate of (i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either registrations with respect to the sale Registrable Shares (each such registration being a "Requested Registration"). (The Company is required to effect a total of securities to employees of the Company only three Requested Registrations pursuant to this Section 2(a) notwithstanding that Registrable Shares may have been transferred to one or more Permitted Transferees.) To effect a stock optionRequested Registration, stock purchase Holdings or similar plan or a SEC Rule 145 transaction), Investments shall make a written request from (a "Request Notice") to the Holders Company which shall describe in detail the contemplated sale of Registerable Securities, including the number of Registerable Securities to be registered. The Company shall be entitled to include in any Requested Registration shares of Common Stock to be sold by holders of either Common Stock or rights to acquire Common Stock to whom the Company has previously granted or in the future does grant any registration rights and shares of Common Stock to be sold by the Company for its own account, provided that such inclusion shall not limit the number of Registrable Shares included in such Registration Statement.
ii. Holdings or Investments may revoke its Request Notice in the event of a majority Cutback Registration that would limit the total number of Registrable Shares that can be sold pursuant to such Requested Registration to a number that is less than 90% of the number of the Registrable Securities then outstanding that Shares specified to be sold in the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Request Notice.
iii. The Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicable, and but in any no event within ninety (90) more than 120 days of the after receipt of such requesta Request Notice, the registration under the Act of all Registrable Securities which the Holders request to be registered in file a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("Initiating Holders") intend to distribute Registration Statement covering 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 Shares to this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned registration requested by each Holder such Request Notice and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement Registration Statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registeredeffective as soon as practicable thereafter.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 utilize this right more than once in any twelve (12) month period.
Appears in 1 contract
Samples: Registration Rights Agreement (Kos Pharmaceuticals Inc)
Requested Registration. (a) If the Company receives at any time after the earlier of (i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than has not filed a registration statement relating either with respect to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the any Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicable, and in any event within ninety (90) days after the date hereof, then subject to the conditions of Subsection 1.3(b) hereof and in lieu of the receipt registration rights granted to the Investor pursuant to Subsection 1.2 hereof, the Investor may make one (1) demand (and one (1) demand only) on the Company to register all of the Registrable Securities of such Investor (a “Demand Registration”).
(b) In the event the Company shall receive from the Investor a written request that the Company effect a Demand Registration with respect to all of the Registrable Securities held by the Investor, other than a registration pursuant to Rule 415 under Regulation C promulgated under the Securities Act, the Company shall:
(i) promptly give written notice of the proposed registration to all Other Stockholders; and
(ii) as soon as practicable, use its diligent best efforts to effect such registration (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) as may be so requested and as would permit or facilitate the sale and distribution of such portion of such Registrable Securities as is specified in such request, together with such portion of the registration under the Act of all Registrable Securities which the Holders of any Other Stockholder joining in such request to be registered as is specified in a written request given within twenty (20) days after receipt of the mailing of such notice by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such eventfrom the Company; provided, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2however, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, effect any such registration pursuant to this Section 3.2Subsection 1.3:
(iA) After in any particular jurisdiction in which the Company has effected two (2) registrations pursuant would be required to this Section 3.2 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 such registrations have been declared or ordered effectiveexcept as may be required by the Securities Act;
(iiB) During during the period following a Public Offering that is contemplated by Subsection 1.10 hereof; or
(C) during the period starting with the date that is sixty (60) days prior to the Company's ’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated underwritten registration subject to Section 3.3 hereof; for an all-cash offer price, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
. In the event the Company is not obligated to effect any requested registration by virtue of the foregoing clauses (iiiA) If through (C), such request shall not be deemed to be a demand for registration for purposes of Subsection 1.3(a) hereof. Subject to the Initiating Holders propose to dispose of shares of foregoing clauses (A) through (C), the Company shall file a registration statement covering the Registrable Securities that may so requested to be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at as soon as practicable after receipt of the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoingInvestor; provided, however, that if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, the Investor a certificate signed by the President Chairman of the Board of the Company stating that in the good good-faith judgment of the Board of Directors of the Company, Company it would be seriously detrimental to the Company and its shareholders stockholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer such filing (except as provided in clause (C) above) for a period of not more than ninety one hundred eighty (90180) days after receipt of the request of the Initiating HoldersInvestor. The registration statement filed pursuant to the request of the Investor may, subject to the provisions of Subsection 1.3(c) below, include securities offered by the Company for its own account and/or other securities of the Company that are held by Other Stockholders.
(c) If the Investor intends to distribute the Registrable Securities covered by his request by means of an underwriting, he shall so advise the Company as a part of his request made pursuant to Subsection 1.3(a) hereof and the Company shall include such information in the written notice referred to in Subsection 1.3(b)(i) hereof. The right of any Other Stockholder to registration shall be conditioned upon such Other Stockholder’s participation in such underwriting and the inclusion of such Other Stockholder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by the Investor and such Other Stockholder) to the extent provided herein. If the Company shall request inclusion in any registration pursuant to this Subsection 1.3 of securities being sold for its own account, or if Other Stockholders shall request inclusion in any registration pursuant hereto, then, subject to the last sentence of this Subsection 1.3(c) with respect to the Company’s request, the Investor shall, on behalf of all Other Stockholders, offer to include such securities in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Section 1. The Company shall (together with the Investor and the Other Stockholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form and containing customary terms reasonably acceptable to the Investor, with the representative of the underwriter or underwriters selected for such underwriting by the Company and reasonably acceptable to the Investor; provided, however, that if the Company has not selected an underwriter reasonably acceptable to the Investor within thirty (30) days after the Company’s receipt of the request for registration from the Investor, then the Investor may select an underwriter reasonably acceptable to the Company in connection with such registration. Notwithstanding any other provision of this Subsection 1.3, if the underwriter representative advises the Investor in writing that marketing factors require a limitation of the number of shares to be underwritten, then the securities of the Company held by Other Stockholders shall first be excluded from such registration to the extent so required by such limitation. The Company shall advise all holders of securities requesting registration as to the number of shares of securities that may be included in the registration and underwriting as allocated in the foregoing manner. If any Other Stockholder who has requested inclusion in such registration as provided above disapproves of the terms of the underwriting, then such person may elect to withdraw therefrom by written notice to the Company, the underwriter and the Investor. The securities so withdrawn shall also be withdrawn from registration. If the underwriter has not limited the number of shares to be underwritten, then the Company may include its securities for its own account in such registration if the underwriter so agrees and if the number of Registrable Securities and other securities of the Other Stockholders that would otherwise have been included in such registration and underwriting will not utilize this right more than once in any twelve (12) month periodbe limited thereby.
Appears in 1 contract
Samples: Registration Rights Agreement (WES Consulting, Inc.)
Requested Registration. (a) If the Company receives If, at any time after the earlier of (i) three (3) years after the date hereofJanuary 28, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of 2002, the Company (other than a registration statement relating either to shall receive from the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), Purchaser a written request from (which shall specify whether the Holders distribution will be made by means of a majority of the Registrable Securities then outstanding an underwriting) that the Company file effect a registration statement under (a "Demand Notice") with respect to all or a part of the Act covering the Purchased Shares, which Demand Notice shall request registration of at least thirty percent (30%) not less than 1,000,000 shares of Common Stock or all remaining shares of Common Stock then held by the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering pricePurchaser, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shallwill, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicable, and in any event within ninety (90) days of the receipt of use its reasonable best efforts to effect such request, the registration under the Securities Act of all Registrable (which shall be a "shelf" Registration Statement pursuant to Rule 415 under the Securities which Act (or a successor provision), if so requested by the Holders request to Purchaser in the Demand Notice and if the Company is eligible therefor at such time) as may be registered in a written request given within twenty (20) days so requested and as would permit or facilitate the sale and distribution of the mailing of such notice by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("Initiating Holders") intend to distribute the Registrable Securities covered -------------------- by their request by means of an underwriting, they shall so advise the Company Purchased Shares as a part of their request made pursuant to this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his Registrable Securities are specified 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided hereinrequest. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) such registrations pursuant to this Section 3.2 and such registrations 9.1(a), the related Registration Statements have been declared or ordered effective;
(ii) During effective and the period starting with the date sixty (60) days prior to the Company's good faith estimate of the date of filing ofdistribution contemplated thereunder completed, and ending on a date one hundred eighty (180) days after the effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to shall have no further obligation under this Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered9.1(a).
(db) Notwithstanding the foregoingany other provision of this Section 9.1, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, the Purchaser a certificate signed by the President or the Chief Executive Officer of the Company stating that the requested registration and offering would require the disclosure of material non-public information and, in the good faith judgment of the Board of Directors of the Company, it such disclosure in a Registration Statement to be filed pursuant to Section 9.1(a) would be seriously detrimental to the Company and its shareholders for such registration statement to be filed stockholders and it is therefore essential desirable and in the best interests of the Company to defer the filing of such registration statementRegistration Statement, then the Company shall have the right to defer such filing for a period of not more than ninety (90) days time after receipt of the request of the Initiating Holderssuch request; provided, however, that the Company may not utilize this right make such a request more than once twice in any twelve 12-month period and the aggregate period of time during which the Company may defer such filing shall not exceed 90 days.
(12c) month periodIn connection with any underwritten offering pursuant to this Section 9.1, the Purchaser shall have the right to select the underwriter or underwriters, which shall be a nationally recognized investment banking firm or firms reasonably acceptable to the Company.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sirius Satellite Radio Inc)
Requested Registration. (a) If In case the Company receives at any time after shall receive from the earlier of (i) three (3) years after Seller or the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), Members a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a effect the registration, qualification or compliance with applicable registration statement under provisions of the Securities Act covering the registration of at least thirty up to fifty percent (3050%) of the shares included in the Post Closing Consideration (the "Registrable Securities Securities") then outstanding (held by Seller or a lesser percent if the anticipated aggregate offering priceMembers, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shallwill, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicable, use its commercially reasonable efforts to effect such registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and in appropriate compliance with applicable regulations issued under the Securities Act and any event within ninety (90other governmental requirements or regulations) days as may be so requested and as may be reasonably required to permit or facilitate the sale and distribution of the receipt all or such portion of such request, the registration under the Act of all Registrable Securities which the Holders request to be registered as are specified in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.5.request:
(ba) If the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the The Company shall not be obligated to effect, or to take any action to effecteffect any such registration, qualification or compliance pursuant to this Section 5.10:
(i) 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;
(ii) Prior to November 1, 1999;
(iii) If the Company has effected one such registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 5.10 and such registrations have registration has been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2Seller or the Members, as applicable, a certificate signed by the President or Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, Company it would be seriously detrimental to the Company and or its shareholders for such a registration statement to be filed and it is therefore essential to defer in the near future, or that delay in the filing of such any registration statementstatement is necessary in light of a pending corporate development, and that the Company is maintaining a similar policy for any and all registration rights then outstanding, then the Company's obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 5.10 shall be deferred (with respect to any demand for registration hereunder) for a period not to exceed forty-five (45) days from the date of receipt of written request from the Seller or the Members, provided that the Company cannot, pursuant to this Section 5.10(a), delay implementation of a demand for registration more than twice in any 12 month period; or
(v) At any time after the Registrable Securities have all become available for resale pursuant to Rule 144 under the Securities Act. Subject to the foregoing clauses (i) through (v), the Company shall have file a registration statement covering the right Registrable Securities so requested to defer be registered and shall use its commercially reasonable efforts to cause such filing for a period of not more than ninety (90) days Registrable Securities to be registered as soon as practicable after receipt of the request of the Initiating Holders; provided, however, that Seller or the Company may not utilize this right more than once in any twelve (12) month periodMembers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Brightstar Information Technology Group Inc)
Requested Registration. (a) If the Company receives shall receive from Initiating Holders at any time after or times not before the earlier of (i) three (3) years after the date hereof, Closing Date or (ii) six (6) months one year after the effective date closing of the first registration statement for a firm commitment, underwritten public offering of the Company's securities registered under the Securities Act of 1933, as amended (the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction"IPO"), a written request from that the Holders of Company effect any registration with respect to all or a majority part of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated having an aggregate offering price, net of underwriting discounts and commissionsexpenses, would equal to or exceeding $10.50 per share of Class B Common Stock (as adjusted for any stock dividends, combinations or splits with respect to such shares) and the aggregate proceeds of which (after deduction for underwriter's discounts and expenses related to the issuance) exceed $10,000,000), then 2 million the Company shall, within ten will:
(10i) days of the receipt thereof, promptly give written notice of such request the proposed registration to all Holders and shall, subject to the limitations of subsection 3.2(b)other Holders; and
(ii) as soon as practicable thereafter, use its best efforts to effect as soon as practicablesuch registration (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and appropriate compliance with the Securities Act) and as would permit and facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in any event within ninety (90) days of the receipt of such request, together with all or such portion of the registration under the Act of all Registrable Securities which the of any Holder or Holders joining in such request to be registered as are specified in a written request given received by the Company within twenty (20) days after such written notice from the Company is mailed or delivered. The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(A) 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;
(B) After the Company has initiated one such registration pursuant to this Section 1.3(a) (counting for these purposes only a registration which has been declared or ordered effective and pursuant to which securities have been sold or a registration which has been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.5 hereof and would, absent such election, have been required to bear such expenses); or
(C) During the period starting from the date sixty (60) days prior to the Company's good faith estimate of the mailing date of filing of, and ending on a date one hundred and eighty (180) days after the date of an underwriting agreement relating to, a Company-initiated registration; provided that the Company is actively employing in good faith reasonable efforts to cause such notice registration statement to become effective;
(D) If the IPO has not taken place, if the Initiating Holders do not request such offering be firmly underwritten by an underwriter selected by the Initiating Holders (subject to the consent of the Company, which consent will not be unreasonably withheld); or
(E) If the IPO has not taken place, if the Company and the Initiating Holders are unable to obtain the commitment of the underwriter described in accordance with Section 5.5clause (D) to firmly underwrite the offer.
(b) If Subject to the Holders initiating foregoing clauses (A) through (E), the Company shall file a registration request hereunder ("Initiating Holders") intend to distribute statement covering the Registrable Securities covered -------------------- by their so requested to be registered as soon as practicable after receipt of the request by means or requests of an underwritingthe Initiating Holders; provided, they shall so advise however, that if (i) in the Company 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 part result, that it is essential to defer the filing of their request made pursuant such registration statement at such time, or in the good faith judgement of the Board of Directors of the Company, such registration should be delayed due to this Section 3.2 the timing of the Company's annual audit and (ii) the Company shall include furnish to such information Holders a certificate signed by the President or Chief Executive Officer of the Company stating that in the written notice referred 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 subsection 3.2(a)the near future and that it is, therefore, essential to defer the filing of such registration statement, or, that such registration should be delayed due to the timing of the Company's annual audit, whichever is applicable, then the Company shall have the right to defer such filing for a collective period during any single calendar year of not more than one hundred and twenty (120) days after the receipt of the request of the Initiating Holders and, provided further, that the Company shall not defer its obligations in this manner more than twice in any twelve-month period. In If all the Holders are allowed to include all Registrable Securities that such eventHolders requested be included in the registration statement filed pursuant to the request of the Initiating Holders, the registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of this Section 1.3(b) and Section 1.11 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. The Company shall pay the reasonable fees and disbursements of one counsel selected by a majority in interest of the Holders in connection with any registration under this Section 1.3.
(c) The right of any Holder to include his Registrable Securities in such registration pursuant to this Section 1.3 shall be conditioned upon such Holder's Holders' 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 HolderHolder with respect to such participation and inclusion) to the extent provided herein. All A Holder may elect to include in such underwriting all or a part of the Registrable Securities he holds.
(d) If the Company shall request inclusion in any registration pursuant to this Section 1.3 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to this Section 1.3, and if all of the Holders are allowed to include all Registrable Securities that such Holders requested to be included in the registration statement filed pursuant to the request of the Initiating Holders, 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 1(including this Section 1.3). The Company shall, together with all Holders and other persons proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) underwriting, 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 HoldersHolders (subject to the Company's consent, which shall not be unreasonably withheld). Notwithstanding any other provision of this Section 3.21.3, if the underwriter representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation of on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may to be included in the underwriting or registration shall be allocated among all Holders thereofas set forth in Section 1.11 hereof. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, including such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, in proportion (as nearly as practicable) to the amount of . 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 shares are so withdrawn from registration and if the number of the Company owned by each Holder and the securities shares to be included in such registration was previously reduced as a result of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration marketing factors pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days prior to the Company's good faith estimate of the date of filing of1.3(d), and ending on a date one hundred eighty (180) days after the effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if then the Company shall furnish offer to all Holders requesting a registration statement pursuant who have retained rights to this Section 3.2, a certificate signed by the President of the Company stating that include securities in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with 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 utilize this right more than once shares to be allocated among such Holders requesting additional inclusion in any twelve (12) month periodaccordance with Section 1.11.
Appears in 1 contract
Samples: Investors' Rights Agreement (Tier Technologies Inc)
Requested Registration. (a) If the Company receives If, at any time after the earlier of (i) three (3) years after the date hereofDecember 1, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of 1999, the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), shall receive a written request from the Holders of a majority of the Registrable Securities then outstanding any Holder that the Company file a registration statement under the Securities Act covering the registration of at least thirty percent (30%) that number of the shares of Registrable Securities then outstanding (or a lesser percent if the whose anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed equal at least $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and shall, subject to the limitations of subsection 3.2(b2.2(b), use its best efforts to effect as soon as practicable, and in any event within ninety (90) days of the receipt of such request, or, with respect to any request received by the Company between December 1, 1999 and December 15, 1999, on or prior to February 1, 2000, the registration under the Securities Act of all Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.53.5.
(b) If the Holder or Holders initiating the registration request hereunder ("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 this Section 3.2 2.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a2.2(a). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e2.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.22.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and Holder; provided, however, that the securities number of shares of Registrable Securities to be included in such underwriting shall not be reduced unless all other shareholders and securities proposed to be sold by persons other than the Company Holders are first entirely excluded entirelyfrom the underwriting.
(c) In addition, the The Company shall not be is obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected effect only two (2) such registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered2.2.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 2.2 a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, Company it would be seriously detrimental to the Company and its shareholders stockholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 utilize this right more than once in any twelve (12) month period.
Appears in 1 contract
Requested Registration. (a) If the Company receives shall receive from Initiating Holders a written request that the Company effect registration with respect to all or at any time after least 51% of the earlier of outstanding Registrable Securities, the Company shall:
(i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, promptly give written notice of such request the proposed registration to all Holders and shall, subject to the limitations of subsection 3.2(b), other Holders; and
(ii) as soon as practicable use its best efforts to effect register (including, without limitation, the execution of an undertaking to file post-effective amendments and any other governmental requirements) all Registrable Securities that the Holders request to be registered within thirty (30) days after receipt of such written notice by the Company; provided that the Company shall not be obligated to file a registration statement pursuant to this Section 4:
(A) prior to 120 days after the closing of the Private Placement;
(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; or
(C) after the Company has effected one such registration pursuant to this Section 4 and such registration has been declared or ordered effective. Subject to the foregoing clauses (A) through (C), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicablepractical, and but in any event within ninety (90) days after receipt of the receipt request or requests of the Initiating Holders and shall use reasonable best efforts to have such request, registration statement promptly declared effective by the registration under the Act of Commission whether or not all Registrable Securities which the Holders request requested to be registered can be included; provided, however, that if the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in a written request given the good faith judgment of the Board of Directors it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed within twenty such ninety (2090) day period and it is therefore essential to defer the filing of such registration statement, the Company shall have an additional period of not more than ninety (90) days after the expiration of the mailing of initial ninety-day (90-day) period within which to file such notice by registration statement; provided, that during such time the Company in accordance with Section 5.5may not file a registration statement for securities to be issued and sold for its own account.
(b) If the Initiating Holders initiating the registration request hereunder ("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 this Section 3.2 and request. In such event or if any underwriting is required by subsection 4(c), the Company shall include such information in the written notice referred to in subsection 3.2(a4(a)(i). In either such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice. The right of any Holder to include his Registrable Securities in such registration pursuant to Section 4 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) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holdersunderwriting. Notwithstanding any other provision provisions of this Section 3.24, 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 Initiating Holders Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant heretoHolders, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders thereofthereof in proportion, including the Initiating Holders, in proportion (as nearly as practicable) , to the amount respective amounts of Registrable Securities of the Company owned held by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 securities to be included in such registration statement to be offered by the Company, its officers and employees shall be excluded from the registration statement prior to the exclusion of any Registrable Securities held by the Holders. If any Holder disapproves of the terms of the underwriting, he may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. 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 may not utilize this shall offer to all holders who have included Registrable Securities in the registration the right more than once to include additional Registrable Securities in any twelve (12) month periodthe 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.
Appears in 1 contract
Samples: Registration Rights Agreement (Caspian Services Inc)
Requested Registration. (a) If the Company receives at At any time after nine months from the earlier Closing Date, in case the Company shall receive from an Initiating Holder a written request that the Company effect any registration with respect to all, and not less than all, of the Registrable Securities, the Company shall:
(i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, promptly give written notice of such request the proposed registration to all Holders and shall, subject to the limitations of subsection 3.2(b), other Holders; and
(ii) as soon as practicable use its best efforts to effect as soon as practicableregister (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and in any event within ninety (90appropriate compliance with federal government requirements) days the sale and distribution of the receipt of Registrable Securities as specified in such request, together with all or such portion of the registration under the Act of all Registrable Securities which the of any other Holder or Holders request to be registered as are specified in a written request given within twenty ten (2010) business days of the mailing after receipt of such notice by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, from the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent Company; provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 3.24.2:
(iA) 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 or applicable rules or regulations thereunder; or
(B) After the Company has effected two one (21) registrations such registration pursuant to this Section 3.2 4.2 and such registrations have registration has been declared or ordered effective;
(ii) During effective and the period starting with the date sixty (60) days prior sales of such Registrable Securities shall have closed. Subject to the Company's good faith estimate of foregoing clauses (A) and (B), the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, Company shall file a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of covering the Registrable Securities so requested to be registered.
(d) Notwithstanding registered as soon as is practicable after receipt of the foregoingrequest or requests of the Initiating Holder(s); provided, however, that if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, such Holder(s) 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 shareholders for such registration statement to be filed and it is therefore essential appropriate to defer the filing of such registration statement, provided that during such time the Company shall have the right be permitted to defer such filing for a period of not more than ninety (90) days after receipt the filing of the request of the Initiating Holderssuch registration statement; provided, however, provided that the Company may not utilize this right more than once in any twelve (12) month period.
Appears in 1 contract
Samples: Series B Preferred Stock Purchase Agreement (Ia Corp)
Requested Registration. (ai) If Subject to the Company receives limitations set forth in this Agreement, at any time after the earlier date which is 90 days after the date of Closing of the Acquisition Agreement (i"Initial Date") and prior to three (3) years after from the date hereof, the Stockholders may together request the Company to register under the Act, all or any portion (iibut not less than 25,000 shares) six (6) months after the effective date of the first Registerable Securities for sale on terms and conditions comparable to those normally applicable to offerings of equity securities in similar circumstances as determined by the Company on Form S-3 or such other form as the Company deems appropriate; provided, however, that the request for registration must be for a continuous or "shelf" registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company made pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement 415 promulgated under the Act covering the registration of at least thirty percent or any similar or successor rule (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price"Shelf Registration"). The Company may, net of underwriting discounts in its sole discretion, and commissionson only one occasion, would exceed $10,000,000), then the Company shall, within terminate any Shelf Registration by giving ten (10) days of the receipt thereof, give written notice to the Stockholders. In such an event, the Company shall grant the Stockholders another registration statement pursuant to this Section 1(b). No such request may be made until at least sixty (60) days have passed from the date of such request termination. In any event, any registration statement pursuant to all Holders and this Section need not remain in effect after any date that is beyond three years from the date hereof.
(ii) Following receipt of any notice under Section 1(b), the Company shall, subject to the limitations of subsection 3.2(b)set forth in this Agreement, use its best efforts to effect as soon as practicable, and in any event within ninety (90) days of the receipt of such request, the registration register under the Act of all Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of the mailing of such notice by the Company Act, for public sale in accordance with the method of disposition specified in the Stockholders' notice, the Registerable Securities specified in the Stockholders' notice; provided, however, that if the Board of Directors of the Company determines that such registration would be detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is in the best interests of the Company to defer the filing of such registration statement at such time, and the Company furnishes to the Stockholder a certificate signed by an executive officer of the Company that the Board of Directors of the Company has made such determination and that it is, therefore, necessary to defer the filing of such registration statement, then the Company shall have the right only once to defer such filing for the period during which such registration would be detrimental, provided (except as otherwise provided in this Section 5.5.
(b1(b)(ii)) If that the Holders initiating Company may not defer the registration filing for a period of more than 180 days after receipt of the request hereunder of the Stockholders ("Initiating HoldersDeferred Filing") intend ). The Company shall be obligated to distribute register the Registrable Registerable 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 this Section 3.2 and the Company shall include 1(b) on one occasion only (except as otherwise provided in Section 1(b)(i); provided that such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his Registrable Securities in such a registration shall be conditioned upon counted only if (A) the corresponding registration statement has become effective under the Act, and (B) the public offering has been consummated on the terms and conditions specified therein or if not consummated, such Holder's participation in such underwriting and failure was not attributable to an action taken by 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) Company. Notwithstanding anything herein to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In additioncontrary, the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 3.2:
(i1(b)(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During during the period starting with the date sixty (60) 90 days prior to the Company's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) 270 days after the effective date filing of, a Company initiated registration subject ("Delayed Registration Statement"). The Company may not causse a Delayed Registration Statement during the first year after the Initial Date (which year shall be increased by any delay caused by a Deferred Filing) unless the Company agrees to include in such Company initiated registration all the Registered Securities of the Stockholders.
(iii) The Company shall be entitled to include in any registration statement filed pursuant to this Section 3.3 hereof; provided that 1(b) (A) securities of the Company held by any other shareholder of the Company, and (B) in an underwritten public offering, Common Stock of the Company to be sold by the Company for its own account.
(iv) If and whenever the Company is actively employing required by the provisions of Section 1(b) hereof to use its best efforts to effect the registration of any of the Registerable Securities under the Act, the Company will, subject to the limitations set forth in good faith all reasonable this Agreement, as expeditiously as reasonably practicable:
(A) prepare and file with the Commission a registration statement with respect to such securities and use its best efforts to cause such registration statement to become effectiveand remain effective for a period of the distribution contemplated thereby (determined pursuant to Section 1(b)(iv)(G) below);
(iiiB) If prepare and file with the Initiating Holders propose Commission such amendments and supplements to dispose of shares of Registrable Securities that such registration statement and the prospectus used in connection therewith as may be immediately registered on Form S-3 pursuant necessary to keep such registration statement effective for the period specified in Section 1(b)(iv)(G) below and as may be necessary to comply with the provisions of the Act with respect to the disposition of all Registerable Securities covered by such registration statement in accordance with the Stockholders' intended method of disposition set forth in such registration statement for such period;
(C) furnish to the Stockholders and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus and each document incorporated by reference therein to the extent then required by the rules and regulations of the Commission) as such persons may reasonably request in order to facilitate the public sale or other disposition of the Registerable Securities covered by such registration statement;
(D) use its best efforts to register or qualify the Registerable Securities covered by such registration statement under the securities or blue sky laws of such jurisdictions as the Stockholder or, in the case of an underwritten public offering, the managing underwriter(s), shall reasonably request and to take all necessary action to keep such registration or qualification effective as required by this Section 1(b) as to a request made pursuant to Section 3.12 belowregistration statement filed with the Commission; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if provided that the Company shall furnish not be required to Holders requesting qualify to transact business as a foreign corporation in any jurisdiction in which it would not otherwise be required to be so qualified or to take any action which would subject it to general service of process in any such jurisdictions which it is not then so subject;
(E) promptly notify in writing each Stockholder and each underwriter of the happening of any event as a result of which the prospectus contained in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing (in which case, the Company shall promptly provide the Stockholders with revised or supplemental prospectuses and if so requested by the Company in writing, the Stockholders shall promptly take action to cease making any offers of the Registerable Securities until receipt and distribution of such revised or supplemental prospectuses);
(F) make available for inspection during normal business hours to a representative of the Stockholders, any underwriter reasonably acceptable to the Company participating in any distribution pursuant to this Section 3.2such registration statement, a certificate signed and any attorney, accountant or other agent retained by the President any representative of the Company stating that in the good faith judgment any Stockholder or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for subsidiaries which may reasonably be required in order to effectuate the distribution, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such registration statement to be filed and it is therefore essential to defer the filing representative of any such Stockholder, underwriter, attorney, accountant or agent in connection with such registration statement, 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 Stockholders and each such representative of any such Stockholder, underwriter, attorney, accountant or agent must execute and deliver to the Company a confidentiality agreement in form and substance acceptable to the Company agreeing to keep any such information and records concerning the Company confidential;
(G) use its best efforts to keep effective and maintain any registration, qualification, approval or listing obtained to cover the Registerable Securities as may be necessary for the Stockholders to dispose of the Registerable Securities during the period of distribution and shall from time to time amend or supplement any prospectus used in connection therewith to the extent necessary in order to comply with applicable law. Notwithstanding the foregoing, the Company shall not utilize this right more be required to file or to keep effective and maintain any such registration, qualification, approval or listing for such period that would require it to cause an audit of the Company to be performed other than once in any twelve as is required by the rules and regulations of the Commission with respect to reports required to be filed under the Securities Exchange Act of 1934, as amended (12) month periodthe "Exchange Act").
Appears in 1 contract
Requested Registration. (a) If the Company receives at shall receive from Initiating Holders a written request that the Company effect any time after registration with respect to all or any portion of the earlier of issued and outstanding Registrable Securities held by Initiating Holders, the Company shall:
(i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, promptly give written notice of such request the proposed registration to all Holders and shallother Holders, subject which notice shall include the approximate date that the registration statement is expected to be filed with the limitations of subsection 3.2(b), Commission; and
(ii) as soon as practicable use its best efforts to effect as soon as practicableregister (including, and in any event within ninety (90) days of the receipt of such requestwithout limitation, the registration under the Act execution of an undertaking to file post-effective amendments and any other governmental requirements) all Registrable Securities which the Initiating Holders request to be registered in a written and all Registrable Securities which the other Holders request given to be registered within twenty (20) days after receipt of such written notice from the Company; provided, that the Company shall not be obligated to file a registration statement pursuant to this Section 5:
(A) in any particular state in which the Company would be required to execute a general consent to service of process in effecting such registration;
(B) within 120 days following the effective date of any registered offering of the mailing Company's securities to the general public in which the Holders of Registrable Securities shall have been able effectively to register all Registrable Securities as to which registration shall have been requested; or
(C) after the Company has effected two such registrations pursuant to this Section 5 and such registrations have been declared or ordered effective, except as provided in Section 7. Subject to the foregoing clauses (A) through (C), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practical, but in any event within forty-five (45) days after receipt of the request or requests of the Initiating Holders and shall use reasonable best efforts to have such registration statement promptly declared effective by the Commission whether or not all Registrable Securities requested to be registered can be included; provided, however, that 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 and its shareholders for such registration statement to be filed within such forty-five (45) day period and it is therefore essential to defer the 6 215 filing of such notice by registration statement, the Company in accordance with Section 5.5shall have an additional period of not more than forty-five (45) days after the expiration of the initial forty-five (45-day) period within which to file such registration statement; provided, that during such first forty-five (45) day period the Company may not file a registration statement for securities to be issued and sold for its own account.
(b) If the Initiating Holders initiating the registration request hereunder ("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 this Section 3.2 and request. In such event or if an underwriting is required by subsection 5(c), the Company shall include such information in the written notice referred to in subsection 3.2(a5(a)(i). In either such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice for the underwriting of all of such Registrable Securities being registered. The right of any Holder to include his Registrable Securities in such registration pursuant to Section 5 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) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holdersunderwriting. Notwithstanding any other provision of this Section 3.25, 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 Initiating Holders Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant heretoHolders, and the number of shares of Registrable 7 216 Securities that may be included in the registration and underwriting shall be allocated among all Holders thereofthereof who are affiliates (as such term is defined in SEC Rule 145 (as hereinafter defined)) of the Company in proportion, including the Initiating Holders, in proportion (as nearly as practicable) , to the amount respective amounts of Registrable Securities of held by such Holders and, to the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effectextent that thereafter, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities security to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to registerred among Holders requesting a registration statement pursuant to this Section 3.2, a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors who are not affiliates of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 securities to be included in such registration statement as a result of piggyback registration rights as well as any securities to be offered by the Company, its officers and employees shall be excluded from the registration statement prior to the exclusion of any Registrable Securities held by the Holders. If any Holder disapproves of the terms of the underwriting, he may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. 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 may not utilize 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.
(c) Any registration pursuant to this right more than once in any twelve Section 5 must be firmly underwritten if the registration exceeds two percent (122%) month periodof the Company's outstanding Common Stock on an as-converted basis.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Intracel Corp)
Requested Registration. (a) If In case the Company receives shall receive from Initiating Holders a written request that the Company effect any registration, qualification or compliance with respect to a proposed registration of Shares (a "Requested Registration") with an aggregate offering price to the public of (x) at any time after least $1,000,000 if such registration may be effected pursuant to a Registration Statement on Form S-3 (or a successor form) or (y) at least $5,000,000 if such registration is effected pursuant to a Registration Statement on a form other than Form S-3, the earlier of Company will:
(i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, promptly give written notice of such request the proposed registration, qualification or compliance to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect other Holders; and
(ii) as soon as practicable, use its best lawful efforts to effect such registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities law and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested by the Initiating Holders and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in any event within ninety (90) days of the receipt of such request, together with all or such portion of the registration under the Act of all Registrable Securities which the of any Holders joining in such request to be registered as are specified in a written request given within twenty (20) days of the mailing of such notice received by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("Initiating Holders") intend to distribute the Registrable Securities covered -------------------- by their request by means within 20 days after receipt of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such eventfrom the Company; provided, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2however, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effecteffect any such registration, any registration qualification or compliance pursuant to this Section 3.23.1:
(iA) After In any particular jurisdiction in which the Company has effected two (2) registrations pursuant would be required to this Section 3.2 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 such registrations have been declared or ordered effectiveexcept as may be required by the Securities Act;
(iiB) During the period starting with the date sixty (60) days prior to the Company's good faith estimate of the estimated date of filing of, and ending on a the date one hundred eighty three (1803) days after months immediately following the effective date of, any registration statement pertaining to securities of the Company (other than a registration subject of securities in a Rule 145 transaction or with respect to Section 3.3 hereof; provided an employee benefit plan), providing that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effectiveeffective (and provided, further, that the Company cannot pursuant to this Section 3.l(a)(ii)(B) delay implementation of a demand for registration more than once in any 12-month period);
(iiiC) If After the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 Company has effected two such registrations pursuant to this subsection 3.1(a); provided, that a request made pursuant registration will only be counted for purposes of this Section 3.1(a)(ii)(C) if (x) such registration has been declared or ordered effective, and (y) no stop order, injunction or the like has been entered barring sales of securities thereunder (other than a stop order, injunction or the like which is promptly resolved, in which case the Company shall use its best lawful efforts to Section 3.12 belowkeep the Registration Statement effective for an additional period equal to the period during which the stop order, injunction or the like barred sales); or
(ivD) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to such Holders requesting a registration statement pursuant to this Section 3.2, 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 or its shareholders for such a registration statement to be filed and it is therefore essential in the near future, then the Company's obligation to defer the filing of such use its best lawful efforts to register, qualify or comply under this Section 3.1 shall be deferred once (with respect to any demand for registration statement, the Company shall have the right to defer such filing hereunder) for a period of not more than to exceed ninety (90) days from the date of receipt of written request from the Initiating Holders, provided that the Company may, by furnishing another certificate pursuant to this Section 3.1(a)(ii)(D), delay implementation of a demand for registration for one additional period of up to ninety (90) days. In the event of such a delay by the Company, the Initiating Holders will be entitled to withdraw their request for such Requested Registration, in which case such right of Requested Registration shall be restored under Section 3.1(a)(C) hereof. Subject to the foregoing clauses (A) through (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.
(b) The Company may register securities for sale for its own account in any registration requested pursuant to this Section 3.1 and may also register restricted securities held by other stockholders; provided, however, that in the Company may not utilize this right more than once event that the number of shares to be included in any twelve (12) month perioda registration is to be limited, then securities to be sold for the Company's own account and restricted securities held by other stockholders shall be eliminated from the registration prior to reducing the number of Shares included in such registration.
Appears in 1 contract
Requested Registration. (a) If the Company receives at At any time after the earlier of (i) three (3) years after the date hereofClosing Date, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of holding at least a majority of the Registrable shares constituting Eligible Securities then outstanding may deliver to the Company a written request that the Company file and use its best efforts to cause to become effective a registration statement under the Securities Act covering the registration of at least thirty percent (30%) with respect to such number of the Registrable Eligible Securities then outstanding owned by the Holders as shall be specified in such request (a “Registration Request”), including, if specified in the Registration Request, a “shelf” registration statement on Form S-3 (or a lesser percent if the anticipated aggregate offering priceForm S-3 is not then available, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, give written notice of Form S-1 or such request to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicable, and in any event within ninety (90) days of the receipt of such request, the registration under the Act of all Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary other form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts eligible to cause such registration statement use with respect to become effective;
(iiithe Eligible Securities) If the Initiating Holders propose for an offering to dispose of shares of Registrable Securities that may be immediately registered made on Form S-3 a delayed or continuous basis pursuant to a request made pursuant to Section 3.12 below; or
(iv) If Rule 415 under the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 HoldersAct; provided, however, that the Company may shall not utilize be obligated to effect any such registration pursuant to this right Section 2.1 if the aggregate value on the date of the Registration Request of the Eligible Securities to be registered thereon is less than $5,000,000. The Company shall not be required to file and use its best efforts to cause to become effective, pursuant to a Registration Request under this Section 2.1 more than once four (4) registration statements at the demand of the Holders. The party (or parties) delivering a Registration Request is hereinafter referred to as the “Requesting Holder.”
(b) As soon as practicable following the receipt of a Registration Request, the Company will use its best efforts to register under the Securities Act, for public sale in accordance with the method of disposition specified in such Registration Request, the number of shares of Eligible Securities specified in such Registration Request (and the number of Eligible Securities specified in all notices received from Holders within 20 business days after notice of the Registration Request has been delivered pursuant to Section 2.2 hereof). The Company shall also be entitled to include in any twelve registration statement filed pursuant to a Registration Request, for sale in accordance with the method of disposition specified in such Registration Request, such number of shares of Common Stock as the Company shall desire to sell for its own account or for the account of other security holders or both. If the method of sale designated is an underwritten public offering, the managing underwriter or underwriters must be reasonably acceptable to both the Requesting Holder (12or the holders of a majority of the shares of Eligible Securities held by all parties comprising the Requesting Holder if more than one party is the Requesting Holder) month periodand the Company, which acceptance shall not be unreasonably withheld. Notwithstanding the foregoing provisions of this Section 2.1(b), to the extent that, in the opinion of the underwriter or underwriters (if the method of disposition shall be an underwritten public offering), marketing considerations require the reduction of the number of shares of Common Stock covered by any such registration, the number of shares of Common Stock to be registered and sold pursuant to such registration shall be reduced as follows:
(i) first, the number of shares of Common Stock to be registered on behalf of the Company shall be reduced (to zero, if necessary); and
(ii) second, the number of shares of Common Stock to be registered on behalf of Persons other than the Holders and their Affiliates, if any, shall be reduced (to zero, if necessary) pro rata according to the number of shares of restricted Common Stock held by each; and
(iii) third, the number of shares of Eligible Securities to be registered on behalf of the Holders and their Affiliates shall be reduced pro rata according to the number of shares of Eligible Securities held by each.
(c) Notwithstanding anything to the contrary contained herein, the exercise by any Holder of any right hereunder with respect to shares of Eligible Securities shall not affect or diminish any other rights of such Holder hereunder with respect to any other securities of the Company held by such Holder.
(d) In addition to any rights Leaf Mountain may have under clause (a) above, while it is the holders of not less than an aggregate of 750,000 shares of the Common Stock (calculated assuming the exercise of all rights, options, warrants to purchase Common Stock or securities convertible or exchangeable for shares of Common Stock), may deliver to the Company, on a single occasion, a Registration Request that the Company file and use its best efforts to cause to become effective, a registration statement under the Securities Act with respect to Eligible Securities comprising not less than 750,000 shares of Common Stock, on the terms and subject to the other conditions applicable to any Registration Request under this Section. Within forty-eight (48) hours of receipt of such Registration Request, the Company shall provide written notice to all of holders of Series E Preferred Stock of such Registration Request.
Appears in 1 contract
Requested Registration. (a) If the Company receives shall receive from Initiating Holders a written request that the Company effect any registration with respect to all or at any time after least 51% of the earlier of outstanding Registrable Securities, the Company shall:
(i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, promptly give written notice of such request the proposed registration to all Holders other Holders; and shall, subject to the limitations of subsection 3.2(b), (ii) as soon as practicable use its best efforts to effect register (including, without limitation, the execution of an undertaking to file post-effective amendments and any other governmental requirements) all Registrable Securities that the Holders request to be registered within thirty (30) days after receipt of such written notice from the Company; provided that the Company shall not be obligated to file a registration statement pursuant to this Section 4:
(A) prior to 120 days after the closing of the Private Placement; (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; or (C) after the Company has effected one such registration pursuant to this Section 4 and such registration has been declared or ordered effective. Subject to the foregoing clauses (A) through (C), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicablepractical, and but in any event within ninety (90) days after receipt of the receipt request or requests of the Initiating Holders and shall use reasonable best efforts to have such request, registration statement promptly declared effective by the registration under the Act of Commission whether or not all Registrable Securities which the Holders request requested to be registered can be included; provided, however, that if the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in a written request given the good faith judgment of the Board of Directors it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed within twenty such ninety (2090) days period and it is therefore essential to defer the filing of such registration statement, the Company shall have an additional period of not more than ninety (90) days after the expiration of the mailing of initial ninety-day (90-day) period within which to file such notice by registration statement; provided, that during such time the Company in accordance with Section 5.5may not file a registration statement for securities to be issued and sold for its own account.
(b) If the Initiating Holders initiating the registration request hereunder ("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 this Section 3.2 and request. In such event or if any underwriting is required by subsection 4(c), the Company shall include such information in the written notice referred to in subsection 3.2(a4(a)(i). In either such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice. The right of any Holder to include his Registrable Securities in such registration pursuant to Section 4 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) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holdersunderwriting. Notwithstanding any other provision provisions of this Section 3.24, 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 Initiating Holders Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant heretoHolders, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders thereofthereof in proportion, including the Initiating Holders, in proportion (as nearly as practicable) , to the amount respective amounts of Registrable Securities of the Company owned held by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 securities to be included in such registration statement to be offered by the Company, its officers and employees shall be excluded from the registration statement prior to the exclusion of any Registrable Securities held by the Holders. If any Holder disapproves of the terms of the underwriting, he may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. 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 may not utilize this shall offer to all holders who have included Registrable Securities in the registration the right more than once to include additional Registrable Securities in any twelve (12) month periodthe 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.
Appears in 1 contract
Requested Registration. (a) If the Company receives shall receive at any time after the earlier of (i) three (3) years after the date hereofMarch 10, 2004, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a an SEC Rule 145 transaction), a written request from the Holders of a majority at least fifty percent (50%) of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000)outstanding, then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and shall, subject to the limitations of subsection 3.2(b2.2(b), use its best efforts to effect as soon as practicable, and in any event within ninety (90) days of the receipt of such request, the registration under the Act of all Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("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 this Section 3.2 2.2 and the Company shall include such information in the written notice to the Holders referred to in subsection 3.2(a2.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e2.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.22.2, if the underwriter advises the Initiating Holders in writing that inclusion of all of the shares proposed to be included in such registration would materially adversely affect the marketing factors require of the shares to be underwritten and that such adverse effect requires a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirelyHolder.
(c) In addition, the The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.22.2:
(i) After the Company has effected two one (21) registrations registration pursuant to this Section 3.2 2.2 and such registrations have registration has been declared or ordered effectiveeffective and remained effective for at least one hundred twenty (120) days;
(ii) During the period starting with the date sixty (60) days prior to the Company's good faith estimate of the date of filing of, of a registration statement subject to Section 2.3 hereof and ending on a date one hundred eighty (180) days after the effective date of, a of such registration subject to Section 3.3 hereofstatement; provided that the Company is actively employing in good faith -------- all reasonable efforts to cause such registration statement to become effective;; or
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 2.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.22.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided, however, that the Company may not utilize this -------- ------- right more than once in any twelve (12) month period; and provided, further, that following such a deferral, the Initiating Holders may withdraw their request, in which case the Initiating Holders will not be deemed to have made a request for registration pursuant to this Section 2.2.
(e) Except for registration statements on Form X-0, X-0 or any successor forms thereto, the Company will not file with the SEC any other registration statement with respect to its Common Stock, whether for its own account or that of other holders, from the date of receipt of a notice from Initiating Holders pursuant to Section 2.2(a) until the earliest of (i) one hundred eighty (180) days following the effective date of such registration, (ii) completion of the period of distribution for the registration contemplated thereby, or (iii) withdrawal of such registration.
Appears in 1 contract
Samples: Rights Agreement (Beatnik Inc)
Requested Registration. (a) If the Company receives shall receive from ---------------------- Initiating Holders 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 respect to Registrable Securities and the anticipated aggregate offering price to the public, excluding underwriting discounts and commissions, is at least eight million dollars ($8,000,000), the Company will:
(i) within thirty days of the receipt by the Company of such notice, give written notice of the proposed registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect such 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 time 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 as are specified in a written request received by the Company within 20 days after receipt of such written notice from the Company; Provided, however, that the Company shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 3.1:
(A) 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;
(B) Prior to the earlier of November 12, 2002 or one hundred eighty (i180) three (3) years after the date hereof, or (ii) six (6) months after days following the effective date of the first registration statement pertaining to a firm commitment underwritten initial public offering (an "IPO");
(C) If the Company delivers a written notice to the Initiating Holders, within thirty (30) days of its receipt of a registration request from such Initiating Holders, of its intent to file a registration statement for an IPO within ninety (90) days;
(D) If the Company's Common Stock is not listed on a public national securities exchange (as defined in the Securities Exchange Act of 1934, as amended (the "Exchange Act")) and the Initiating Holders do not request that such offering of securities of be firmly underwritten by underwriters selected by the Company (other than a registration statement relating either subject to the sale consent of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request proposed to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicable, and in any event within ninety (90) days of the receipt of such request, the registration under the Act of all Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effectiveunderwriting);
(iiE) During the period starting with the date sixty (60) days prior to the Company's good faith estimate of the estimated date of filing of, and ending on a the date one hundred eighty (180) days after immediately following the effective date of, any registration statement pertaining to securities of the Company (other than a registration subject of securities in a Rule 145 transaction or with respect to Section 3.3 hereof; 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;
(iiiF) After the Company has effected two such registrations pursuant to this Section 3.1(a) (counting for this purpose only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses);
(G) If the Initiating Holders propose to dispose of shares of Registrable Securities that which may be immediately registered on Form S-3 pursuant to a request made pursuant to under Section 3.12 below; or3.3 hereof;
(ivH) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to such Holders requesting a registration statement pursuant to this Section 3.2, 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 or its shareholders stockholders for such a registration statement to be filed and it is therefore essential at such time, then the Company's obligation to defer the filing of such registration statementuse its best efforts to register, the Company qualify or comply under this Section 3.1 shall have the right to defer such filing be deferred for a period of not more than to exceed ninety (90) days after from the date of receipt of the written request of from the Initiating Holders; provided, however, that the Company may shall not utilize this exercise such right more than once in any twelve (12) twelve-month period. Subject to the foregoing clauses (A) through (H), 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 receives shall receive from Initiating Holders a written request that the Company effect any registration with respect to all or at any time after least 51% of the earlier of outstanding Registrable Securities, the Company shall:
(i) three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, promptly give written notice of such request the proposed registration to all Holders and shall, subject to the limitations of subsection 3.2(b), other Holders; and
(ii) as soon as practicable use its best efforts to effect register (including, without limitation, the execution of an undertaking to file post-effective amendments and any other governmental requirements) all Registrable Securities that the Holders request to be registered within thirty (30) days after receipt of such written notice from the Company; provided that the Company shall not be obligated to file a registration statement pursuant to this Section 4:
(A) prior to 120 days after the closing of the Private Placement;
(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; or
(C) after the Company has effected one such registration pursuant to this Section 4 and such registration has been declared or ordered effective. Subject to the foregoing clauses (A) through (C), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicablepractical, and but in any event within ninety (90) days after receipt of the receipt request or requests of the Initiating Holders and shall use reasonable best efforts to have such request, registration statement promptly declared effective by the registration under the Act of Commission whether or not all Registrable Securities which the Holders request requested to be registered can be included; provided, however, that if the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in a written request given the good faith judgment of the Board of Directors it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed within twenty such ninety (2090) days period and it is therefore essential to defer the filing of such registration statement, the Company shall have an additional period of not more than ninety (90) days after the expiration of the mailing of initial ninety-day (90-day) period within which to file such notice by registration statement; provided, that during such time the Company in accordance with Section 5.5may not file a registration statement for securities to be issued and sold for its own account.
(b) If the Initiating Holders initiating the registration request hereunder ("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 this Section 3.2 and request. In such event, the Company shall include such information in the written notice referred to in subsection 3.2(a4(a)(i). In such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice. The right of any Holder to include his Registrable Securities in such registration pursuant to Section 4 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holdersunderwriting. Notwithstanding any other provision provisions of this Section 3.24, 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 Initiating Holders Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant heretoHolders, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders thereofthereof in proportion, including the Initiating Holders, in proportion (as nearly as practicable) , to the amount respective amounts of Registrable Securities of the Company owned held by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days 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 effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, 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 securities to be included in such registration statement to be offered by the Company may not utilize this right more than once in Company, its officers and employees shall be excluded from the registration statement prior to the exclusion of any twelve (12) month period.Registrable Securities held by the
Appears in 1 contract
Samples: Registration Rights Agreement (Caspian Services Inc)
Requested Registration. (a) If Prior to such time as the Company receives at any time after the earlier of (i) has ---------------------- effected three (3) years after the date hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company file a registration statement under the Act covering the registration of at least thirty percent (30%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicable, and in any event within ninety (90) days of the receipt of such request, the registration under the Act of all Registrable Securities which the Holders request to be registered in a written request given within twenty (20) days of the mailing of such notice by the Company in accordance with Section 5.5.
(b) If the Holders initiating the registration request hereunder ("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 this Section 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his 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 (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 3.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 3.2 4.1 and such registrations have been declared or ordered effective, if the Company shall receive from Initiating Holders 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 respect to Registrable Securities representing at least twenty percent (20%) of the outstanding Registrable Securities (or any lesser percentage if the anticipated aggregate offering price to the public is at least five million dollars ($5,000,000)), the Company will:
(a) promptly give written notice of the proposed registration to all other Holders; and
(b) as soon as practicable but in any event within ninety (90) days, use its diligent best efforts to effect such registration (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) 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 as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company; provided that the Company shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 4.1:
(i) 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;
(ii) During Prior to the period starting with earlier of three (3) years after the date of this Agreement or six (6) months following closing of the first underwritten public offering of Common Stock of the Company for its own account pursuant to a registration statement filed under to the Securities Act; or
(iii) If at the time of the request to register Registrable Securities the Company in good faith gives notice within thirty (30) days of such request that it is engaged or has fixed plans to engage within sixty (60) days prior of the time of the request in an initial firmly underwritten registered public offering; provided, however, such notice may not be given more than once in any six (6) month period. Subject to the Company's good faith estimate of the date of filing of, and ending on a date one hundred eighty foregoing clauses (180i) days after the effective date of, a registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
through (iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant and to Section 3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, 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 shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement4.1(d), the Company shall have file a registration statement covering the right Registrable Securities so requested to defer such filing for a period of not more than ninety (90) days be registered as soon as practicable after receipt of the request of the Initiating Holders; provided, however, that the Company may not utilize this right more than once in any twelve (12) month period.
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