Common use of Required Registrations Clause in Contracts

Required Registrations. (a) If at any time following the earlier of (i) five (5) years after the date of this Agreement or (ii) six months after the closing of the Initial Public Offering, an Investor or Investors holding in the aggregate at least 50% of the Registrable Shares then outstanding may request, in writing, that the Company effect the registration on Form S-1 (or any successor form) of Registrable Shares owned by such Investor or Investors having an aggregate value of at least $10,000,000 (based on the market price or fair value on the date of such request), then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within ninety (90) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Shares that the Initiating Holders requested to be registered and any additional Registrable Shares requested to be included in such registration by any other Holder, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(c) and Section 2.1(e). (b) If at any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), an Investor or Investors holding Registrable Shares may request, in writing, that the Company effect the registration on Form S-3 (or such successor form), of Registrable Shares having an aggregate value of at least $1,000,000 (based on the public market price on the date of such request), then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Shares requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(c) and Section 2.1(e). (c) If the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Sections 2.1(a) or (b) and the Company shall include such information in the Demand Notice. In such event, (i) the right of any other Holder to include its Registrable Shares in such registration pursuant to Sections 2.1(a) or (b), shall be conditioned upon such other Holder’s participation in such underwriting on the terms set forth herein, and (ii) all Holders including Registrable Shares in such registration shall enter into an underwriting agreement upon customary terms with the underwriter or underwriters managing the offering; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Holders materially greater than the obligations of the Holders pursuant to Section 2.5. The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Sections 2.1(a) or (b), subject to the approval of the Company, which approval will not be unreasonably withheld, conditioned or delayed. If any Holder who has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Holder may elect, by written notice to the Company, to withdraw its Registrable Shares from such Registration Statement and underwriting. If the Company desires that any officers or directors of the Company holding securities of the Company be included in any registration for an underwritten offering requested pursuant to Section 2.1 or if Other Holders request such inclusion, the Company may include the securities of such officers, directors and Other Holders in such registration and underwriting on the terms set forth herein applicable to the Holders. If the managing underwriter advises the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the shares held by officers or directors of the Company and by Other Holders (other than Registrable Shares) shall be excluded from such Registration Statement and underwriting to the extent deemed advisable by the managing underwriter, and if a further reduction of the number of shares is required, the number of shares that may be included in such Registration Statement and underwriting shall be allocated among all Holders requesting registration in proportion, as nearly as practicable, to the respective number of Registrable Shares held by them on the date of the request for registration made by the Initiating Holders pursuant to Section 2.1(a) or (b), as the case may be. If any such Holder would thus be entitled to include more shares than such Holder requested to be registered, the excess shall be allocated among other participating Holders pro rata in the manner described in the preceding sentence. If the managing underwriter has not limited the number of Registrable Shares or other securities to be underwritten, the Company may include securities for its own account in such registration if the managing underwriter so agrees and if the number of Registrable Shares and other securities which would otherwise have been included in such registration and underwriting will not thereby be limited. (d) The Company shall not be required to effect more than two (2) registrations pursuant to Section 2.1(a). In addition, the Company shall not be required to effect any registration within six months after the effective date of the Registration Statement relating to the Initial Public Offering. For purposes of this Section 2.1(d), a Registration Statement shall not be counted until such time as such Registration Statement has been declared effective by the Commission (unless the Initiating Holders withdraw their request for such registration (other than as a result of information concerning the business or financial condition of the Company which is made known to the Holders after the date on which such registration was requested) and elect not to pay the Registration Expenses therefor pursuant to Section 2.4). For purposes of this Section 2.1(d), a Registration Statement shall not be counted if, as a result of an exercise of the underwriter’s cut-back provisions, less than 50% of the total number of Registrable Shares that Holders have requested to be included in such Registration Statement are so included. (e) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged or has plans to engage within 30 days of the time of the request in a registered public offering of securities for its own account or is engaged in any other activity which, in the good faith determination of the Company’s Board of Directors (the “Board of Directors”), would be adversely affected by the requested registration, then the Company may at its option direct that such request be delayed for a period not in excess of 30 days from the date of such request, such right to delay a request to be exercised by the Company not more than once in any 12-month period.

Appears in 2 contracts

Samples: Investor Rights Agreement (Ocular Therapeutix, Inc), Investor Rights Agreement (Ocular Therapeutix, Inc)

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Required Registrations. (a) If at At any time following after the earlier of (i) five (5) years after the date of this Agreement April __, 2014 or (ii) six months after the closing of the Initial Public Offering, an Investor or Investors holding in the aggregate at least 50% a majority of the Registrable Shares then outstanding may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) of Registrable Shares owned by such Investor or Investors having an aggregate value of at least $10,000,000 20,000,000 (based on the market price or fair value on the date of such request), then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within ninety (90) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Shares that the Initiating Holders requested to be registered and any additional Registrable Shares requested to be included in such registration by any other Holder, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(c) and Section 2.1(e). (b) If at At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), an Investor or Investors holding in the aggregate a majority of the Registrable Shares then outstanding may request, in writing, that the Company effect the registration on Form S-3 (or such successor form), of Registrable Shares owned by such Investor or Investors having an aggregate value of at least $1,000,000 10,000,000 (based on the public market price on the date of such request). (c) Upon receipt of any request for registration pursuant to this Section 2, then the Company shall promptly give written notice of such proposed registration to all other Investors. Such Investors shall have the right, by giving written notice to the Company within 30 days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Investors may request in such notice of election, subject in the case of an underwritten offering to the terms of Section 2.1(d). Thereupon, the Company shall, as expeditiously as possible (but in no event later than (i) within ten (1090 days in the case of a request under Section 2.1(a) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable60 days in the case of a request under Section 2.1(b)), and in any event within forty-five (45) days after use its best efforts to effect the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering on an appropriate registration form of all Registrable Shares which the Company has been requested to so register; provided, however, that in the case of a registration requested under Section 2.1(b), the Company will only be included in obligated to effect such registration by on Form S-3 (or any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(c) and Section 2.1(esuccessor form). (cd) If the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Sections Section 2.1(a) or (b) ), as the case may be, and the Company shall include such information in the Demand Noticeits written notice referred to in Section 2.1(c). In such event, (i) the right of any other Holder Investor to include its Registrable Shares in such registration pursuant to Sections Section 2.1(a) or (b), as the case may be, shall be conditioned upon such other HolderInvestor’s participation in such underwriting on the terms set forth herein, and (ii) all Holders Investors including Registrable Shares in such registration shall enter into an underwriting agreement upon customary terms with the underwriter or underwriters managing the offering; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Holders Investors materially greater than the obligations of the Holders Investors pursuant to Section 2.5. The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Sections Section 2.1(a) or (b), subject to the approval of the Company, which approval will not be unreasonably withheld, conditioned or delayed. If any Holder Investor who has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Holder Investor may elect, by written notice to the Company, to withdraw its Registrable Shares from such Registration Statement and underwriting. If the Company desires that any officers or directors of the Company holding securities of the Company be included in any registration for an underwritten offering requested pursuant to Section 2.1 or if Other Holders request such inclusion, the Company may include the securities of such officers, directors and Other Holders in such registration and underwriting on the terms set forth herein applicable to the Holders. If the managing underwriter advises the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the shares held by officers or directors of the Company and by Other Holders (other than Registrable Shares) shall be excluded from such Registration Statement and underwriting to the extent deemed advisable by the managing underwriter, and if a further reduction of the number of shares is required, the number of shares that may Registrable Shares to be included in such the Registration Statement and underwriting shall be allocated among all Holders Investors requesting registration in proportion, as nearly as practicable, to the respective number of Registrable Shares held by them on the date of the request for registration made by the Initiating Holders pursuant to Section 2.1(a) or (b), as the case may be. If any such Holder Investor would thus be entitled to include more shares Registrable Shares than such Holder Investor requested to be registered, the excess shall be allocated among other participating Holders requesting Investors pro rata in the manner described in the preceding sentence. If the managing underwriter has not limited the number of Registrable Shares or other securities to be underwritten, the Company may include securities for its own account in such registration if the managing underwriter so agrees and if the number of Registrable Shares and other securities which would otherwise have been included in such registration and underwriting will not thereby be limited. (de) The Company shall not be required to effect more than two (2) registrations pursuant to Section 2.1(a) or more than two registrations in any 12-month period pursuant to Section 2.1(b). In addition, the Company shall not be required to effect any registration within six months after the effective date of the Registration Statement relating to the Initial Public Offering. For purposes of this Section 2.1(d2.1(e), a Registration Statement shall not be counted until such time as such Registration Statement has been declared effective by the Commission (unless the Initiating Holders withdraw their request for such registration (other than as a result of information concerning the business or financial condition of the Company which is made known to the Holders Investors after the date on which such registration was requested) and elect not to pay the Registration Expenses therefor pursuant to Section 2.4). For purposes of this Section 2.1(d2.1(e), a Registration Statement shall not be counted if, as a result of an exercise of the underwriter’s cut-back provisions, less than 5030% of the total number of Registrable Shares that Holders Investors have requested to be included in such Registration Statement are so included. (ef) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged or has plans to engage within 30 days of the time of the request in a registered public offering of securities for its own account or is engaged in any other activity which, in the good faith determination of the Company’s Board of Directors (the “Board of Directors”), would be adversely affected by the requested registration, then the Company may at its option direct that such request be delayed for a period not in excess of 30 60 days from the date of such request, such right to delay a request to be exercised by the Company not more than once in any 12-month period.

Appears in 1 contract

Samples: Registration Rights Agreement (Zipcar Inc)

Required Registrations. (a) If Subject to the terms and conditions of this Agreement, including without limitation Section 2.1(g), at any time following after the earlier of (ix) five (5) years after the third anniversary date of this Agreement the Subsequent Closing (as defined in the Note and Warrant Purchase Agreement) of the Units or (iiy) six months after the closing of the Initial Public Offering, an Investor a Stockholder or Investors Stockholders holding in the aggregate at least 5015% of the Senior Registrable Shares then outstanding may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) of Senior Registrable Shares owned by such Investor Stockholder or Investors Stockholders having an aggregate value of at least $10,000,000 (based on the then current market price or fair value on value). Each such Stockholder's request shall specify the date number of such request), then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within ninety (90) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Senior Registrable Shares that the Initiating Holders requested to be registered and any additional Registrable Shares requested to be included in for which registration is sought by such registration by any other Holder, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(c) and Section 2.1(e)Stockholder. (b) If Subject to the terms and conditions of this Agreement, including without limitation Section 2.1(g), at any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), an Investor a Stockholder or Investors Stockholders holding in the aggregate at least 15% of the Senior Registrable Shares then outstanding or holding any Junior Registrable Shares may request, in writing, that the Company effect the registration on Form S-3 (or such successor form), ) of Registrable Shares having an aggregate value of at least $1,000,000 5,000,000 (based on the then current public market price on the date of such request), then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Shares requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(c) and Section 2.1(eprice). (c) Upon receipt of any request for registration from any stockholder having registration rights pursuant to this Agreement or any other agreement, the Company shall promptly give written notice of such proposed registration to all other Stockholders. Such Stockholders shall have the right, by giving written notice to the Company within 20 days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Stockholders may request in such notice of election, subject, in the case of an underwritten offering, to the approval of the managing underwriter as provided in Section 2.1(e) below. Thereupon, the Company shall, as expeditiously as possible, use commercially reasonable efforts to effect the registration on an appropriate registration form of all Registrable Shares which the Company has been requested to so register; provided, however, that in the case of a registration requested under Section 2.1(b), the Company will only be obligated to effect such registration on Form S-3 (or any successor form). (d) If the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Sections Section 2.1(a) or (b) ), as the case may be, and the Company shall include such information in the Demand Noticeits written notice referred to in Section 2.1(c). In such event, (i) the The right of any other Holder Stockholder to include its Registrable Shares in such registration pursuant to Sections Section 2.1(a) or (b), as the case may be, shall be conditioned upon such other Holder’s Stockholder's participation in such underwriting on the terms set forth herein, and . (iie) all Holders including Registrable Shares in such registration shall enter into an underwriting agreement upon customary terms with the underwriter or underwriters managing the offering; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Holders materially greater than the obligations of the Holders pursuant to Section 2.5. The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Sections 2.1(a) or (b), subject to the approval of the Company, which approval will not be unreasonably withheld, conditioned or delayed. If any Holder who has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Holder may elect, by written notice to the Company, to withdraw its Registrable Shares from such Registration Statement and underwriting. If the Company desires that any officers or directors of the Company holding securities of the Company be included in any registration for an underwritten offering requested pursuant to Section 2.1 2.1(d) or if other holders of securities of the Company who are entitled, by contract with the Company, to have securities included in such a registration (the "Other Holders Holders") request such inclusion, the Company may include the securities of such officers, directors and Other Holders in such registration and underwriting on the terms set forth herein applicable herein. The Company shall (together with all Stockholders, officers, directors and Other Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form (including, without limitation, customary indemnification and contribution provisions on the Holderspart of the Company) with the managing underwriter; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of Stockholders that are materially greater than the obligations of the Stockholders under Section 2.5; provided further, that the Company shall use commercially reasonable efforts to negotiate with the underwriters so that the underwriting agreement will not require the Stockholders to make any representation or warranty other than in connection with information described in Section 2.7. If Notwithstanding any other provision of this Section 2.1(e), if the managing underwriter advises the Company in writing that marketing factors require a limitation on the number inclusion of all shares requested to be underwrittenregistered would adversely affect the offering or could not reasonably be sold within the price range acceptable to the Initiating Holders owning a majority of the securities requested to be included by the Initiating Holders, then first the shares securities of the Company held by officers or directors of the Company (other than Registrable Shares), and second the securities held by Other Holders (other than Registrable Shares) and third Junior Registrable Shares in the case of an offering initiated by holders of Senior Registrable Shares and Senior Registrable Shares in the case of an offering initiated by holders of Junior Registrable Shares shall be excluded from such Registration Statement registration and underwriting in that order and to the extent deemed advisable by the managing underwriter, and if a further reduction limitation of the number of shares is required, the number of shares that may be included in such Registration Statement registration and underwriting shall be allocated first among all Holders holders of Senior Registrable Shares requesting registration in proportion, as nearly as practicable, to the respective number of Senior Registrable Shares held by them on at the date time of the request for registration made by the Initiating Holders pursuant to Section 2.1(a) or (b), as the case may be, and second among all holders of Junior Registrable Shares requesting registration in proportion, as nearly as practicable, to the respective number of Junior Registrable Shares held by them at the time of the request for registration made by the Initiating Holders pursuant to Section 2.1(a) or (b), as the case may be. If any holder of Registrable Shares, officer, director or Other Holder who has requested inclusion in such Holder would thus registration as provided above disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, and the securities so withdrawn shall also be entitled to include more shares than such Holder requested to be registered, the excess shall be allocated among other participating Holders pro rata in the manner described in the preceding sentencewithdrawn from registration. If the managing underwriter has not limited the number of Registrable Shares or other securities to be underwritten, the Company may include securities for its own account in such registration if (i) the managing underwriter so agrees and if agrees, (ii) the number of Registrable Shares and other securities which would otherwise have been included in such registration and underwriting will not thereby be limitedlimited and (iii) the inclusion of the Company's securities will not, in the opinion of the managing underwriters, adversely affect the ability of the holders of Registrable Shares to be included in the offering to sell such Registrable Shares within the price range acceptable to the Initiating Holders holding a majority of the securities requested to be included by the Initiating Holders. (df) The Company shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Section 2.1(a) or (b), subject to the approval of a majority of the Initiating Holders, which approval will not be unreasonably withheld or delayed. (g) The Company shall not be required to effect file or cause a Registration Statement to be declared effective for (i) more than one registration pursuant to Section 2.1(a) during any 12-month period, (ii) more than two (2) registrations pursuant to Section 2.1(a) during the term of this Agreement, (iii) more than seven registrations pursuant to Section 2.1(b) during the term of this Agreement of which two may be initiated by BayCorp, one may be initiated by Equiva as to its Junior Registrable Shares, one may be initiated by Elliott Associates, L.P. ("Elliott"), one may be ixxxxxxxd by Omega Advisors, Xxx. ("Omega") and two may be initiated by holders of Senior Registrable Shares other than Elliott and Omega. In addition, during the one yeax xxxxxd immediately following the Initial Public Offering, the Company shall not be required to effect any registration (other than a registration on Form S-3 or any successor form relating to non-underwritten secondary offerings) within six months after the effective date of the any other Registration Statement relating to of the Company. After the first anniversary of the Initial Public Offering, the Company shall not be required to effect any registration (other than a registration on Form S-3 or any successor form relating to non-underwritten secondary offerings) within three months after the effective date of any other Registration Statement of the Company. For purposes of this Section 2.1(d2.1(g), a Registration Statement shall not be counted until such time as such Registration Statement has been declared effective by the Commission (unless the Initiating Holders withdraw their request for such registration (other than as a result of adverse information concerning the business or financial condition of the Company which is made known to the Holders Stockholders after the date on which such registration was requested) and elect not to pay the Registration Expenses therefor pursuant to Section 2.4). For purposes In addition, and notwithstanding the foregoing provisions of this Section 2.1(d2.1(g), in the event that, in connection with any registration pursuant to 2.1(a) or 2.1(b), if (x) the underwriters insist, despite commercially reasonable efforts by the Company to the contrary, that as a Registration Statement shall condition to the participation of Equiva in the offering Equiva make representations and warranties other than representations and warranties in connection with information described in Section 2.7 and (y) Equiva elects not be counted if, to participate in such registration as a result of an exercise such underwriters' action, then Equiva by itself shall be entitled to initiate one additional registration pursuant to Section 2.1(a) or 2.1(b), as applicable, regardless of the underwriter’s cut-back provisions, less than 50% percentage of outstanding shares of Senior Registrable Shares or Junior Registrable Shares then owned at such time by Equiva or the aggregate value of the total Senior Registrable Shares or Junior Registrable Shares to be registered (by Equiva or others), and the number of Registrable Shares registrations that Holders have requested the Company is required to effect pursuant to clause (ii) or (iii), as the cases may be, shall be included in such Registration Statement are so includedincreased by one. (eh) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged or has plans to engage within 30 days of the time of the request in a registered public offering of securities for its own account or is engaged in any other activity which, in the good faith determination of the Company’s Board of Directors (the “'s Board of Directors”), would be adversely affected by the requested registration, then the Company may at its option direct that such request be delayed for a period not in excess of 30 50 days from the date of such request. During any such delay period, the Company shall continue to prepare a proposed Registration Statement, but may delay filing such Registration Statement pursuant to this Section 2.1(h). The Company's right to delay a request to may not be exercised by the Company not more than once twice in any 12-month period.

Appears in 1 contract

Samples: Investor Rights Agreement (Baycorp Holdings LTD)

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Required Registrations. (a) If at At any time following after the earlier of (ix) five (5) years after the date of this Agreement February 25, 2002 or (iiy) six months after the closing of the Initial Public Offering, an Investor a Stockholder or Investors Stockholders (excluding the Founders) holding in the aggregate at least 5035% of the Registrable Shares then outstanding (excluding the Registrable Shares held by the Founders) may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) of Registrable Shares owned by such Investor Stockholder or Investors Stockholders having an aggregate value of at least $10,000,000 5,000,000 (based on the then current market price or fair value on the date of such request), then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within ninety (90) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Shares that the Initiating Holders requested to be registered and any additional Registrable Shares requested to be included in such registration by any other Holder, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(c) and Section 2.1(evalue). (b) If at At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), an Investor a Stockholder or Investors Stockholders (excluding the Founders) holding in the aggregate at least 20% of the Registrable Shares (excluding the Registrable Shares held by the Founders) may request, in writing, that the Company effect the registration on Form S-3 (or such successor form), of Registrable Shares having an aggregate value of at least $1,000,000 (based on the then current public market price on the date of such request), then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Shares requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(c) and Section 2.1(eprice). (c) Upon receipt of any request for registration pursuant to this Section 2, the Company shall promptly give written notice of such proposed registration to all other Stockholders (including the Founders). Such Stockholders shall have the right, by giving written notice to the Company within 30 days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Stockholders may request in such notice of election, subject in the case of an underwritten offering to the approval of the managing underwriter as provided in Section 2(d) below. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration on an appropriate registration form of all Registrable Shares which the Company has been requested to so register (provided, however, that in the case of a registration requested under Section 2.1(b), the Company will only be obligated to effect such registration on Form S-3 (or any successor form)). (d) If the Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Sections Section 2.1(a) or (b) ), as the case may be, and the Company shall include such information in the Demand Noticeits written notice referred to in Section 2.1(c). In such event, (i) the The right of any other Holder Stockholder to include its Registrable Shares in such registration pursuant to Sections Section 2.1(a) or (b), as the case may be, shall be conditioned upon such other Holder’s Stockholder's participation in such underwriting on the terms set forth herein, and (ii) all Holders including Registrable Shares in such registration shall enter into an underwriting agreement upon customary terms with the underwriter or underwriters managing the offering; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Holders materially greater than the obligations of the Holders pursuant to Section 2.5. The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Sections 2.1(a) or (b), subject to the approval of the Company, which approval will not be unreasonably withheld, conditioned or delayed. If any Holder who has requested inclusion of its Registrable Shares in such registration as provided above disapproves of the terms of the underwriting, such Holder may elect, by written notice to the Company, to withdraw its Registrable Shares from such Registration Statement and underwriting. If the Company desires that any officers or directors of the Company holding securities of the Company be included in any registration for an underwritten offering requested pursuant to Section 2.1 2.1(d) or if other holders of securities of the Company who are entitled, by contract with the Company, to have securities included in such a registration (the "Other Holders Holders") request such inclusion, the Company may include the securities of such officers, directors and Other Holders in such registration and underwriting on the terms set forth herein applicable herein. The Company shall (together with all Stockholders, officers, directors and Other Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form (including, without limitation, customary indemnification and contribution provisions on the Holderspart of the Company) with the managing underwriter; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of Stockholders materially greater than the obligations of the Stockholders pursuant to Section 2.5. If Notwithstanding any other provision of this Section 2.1(d), if the managing underwriter advises the Company in writing that marketing factors require a limitation on the number inclusion of all shares requested to be underwrittenregistered would adversely affect the offering, the shares securities of the Company held by officers or directors of the Company (other than Registrable Shares) and the securities held by Other Holders (other than Registrable Shares) shall be excluded from such Registration Statement registration and underwriting to the extent deemed advisable by the managing underwriter, and if a further reduction limitation of the number of shares is required, the number of shares that may be included in such Registration Statement registration and underwriting shall be allocated among all Holders holders of Registrable Shares requesting registration in proportion, as nearly as practicable, to the respective number of Registrable Shares held by them on at the date time of the request for registration made by the Initiating Holders pursuant to Section 2.1(a) or (b), as the case may be. If any holder of Registrable Shares, officer, director or Other Holder who has requested inclusion in such Holder would thus registration as provided above disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, and the securities so withdrawn shall also be entitled to include more shares than such Holder requested to be registered, the excess shall be allocated among other participating Holders pro rata in the manner described in the preceding sentencewithdrawn from registration. If the managing underwriter has not limited the number of Registrable Shares or other securities to be underwritten, the Company may include securities for its own account in such registration if the managing underwriter so agrees and if the number of Registrable Shares and other securities which would otherwise have been included in such registration and underwriting will not thereby be limited. (de) The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Section 2.1(a) or (b), subject to the approval of the Company, which approval will not be unreasonably withheld. (f) The Company shall not be required to effect more than two (2) registrations pursuant to Section 2.1(a). In addition, the Company shall not be required to effect more than three registrations pursuant to Section 2.1(b) in any 12-month period. Moreover, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months after the effective date of the any other Registration Statement relating to of the Initial Public OfferingCompany. For purposes of this Section 2.1(d2.1(f), a Registration Statement shall not be counted until such time as such Registration Statement has been declared effective by the Commission (unless the Initiating Holders withdraw their request for such registration (other than as a result of information concerning the business or financial condition of the Company which is made known to the Holders Stockholders after the date on which such registration was requested) and elect not to pay the Registration Expenses therefor pursuant to Section 2.4). For purposes of this Section 2.1(d), a Registration Statement shall not be counted if, as a result of an exercise of the underwriter’s cut-back provisions, less than 50% of the total number of Registrable Shares that Holders have requested to be included in such Registration Statement are so included. (eg) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged or has plans to engage within 30 days of the time of the request in a registered public offering of securities for its own account or is engaged in any other activity which, in the good faith determination of the Company’s Board of Directors (the “'s Board of Directors”), would be adversely affected by the requested registration, then the Company may at its option direct that such request be delayed for a period not in excess of 30 90 days from the date of such request, such right to delay a request to be exercised by the Company not more than once in any 12-month period.

Appears in 1 contract

Samples: Investor Rights Agreement (Red Hat Inc)

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