Common use of Shelf Registration Statement Demand Registration Clause in Contracts

Shelf Registration Statement Demand Registration. (a) Subject to the terms and conditions contained herein (including the limitations set forth in Section 2(b), Section 2(c) and Section 7): (i) The Company shall use commercially reasonable efforts to prepare and file with the SEC a shelf registration statement on Form S-3 (or any successor form) providing for continuous resales of securities pursuant to Rule 415 of the Securities Act (a “Shelf Registration Statement”) with respect to sales of Registrable Securities which may be made by the Holders, and to cause such Shelf Registration Statement to be declared effective by the SEC on or prior to the Rights Effective Date. Upon the demand of Holders pursuant to a notice made at any time and from time to time beginning ten (10) days prior to the Rights Effective Date, the Company will facilitate, beginning on the Rights Effective Date, in the manner described in this Section 2(a)(i), a “takedown” of shares of Common Stock off of such Shelf Registration Statement (a “Shelf Takedown”), including, subject to the limitations set forth in Section 2(a)(v), an Underwritten Offering. Notwithstanding the foregoing, if the Company is a WKSI, the Company shall file, on or prior to the Rights Effective Date, the Shelf Registration Statement in the form of an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) or any successor form thereto registering all Registrable Securities then held by such Holders. Within ten (10) days after the Shelf Registration Statement is declared effective, the Company will deliver written notice thereof to all other Holders. Each Holder may elect to participate with respect to its Registrable Securities in the Shelf Registration Statement in accordance with the plan and method of distribution set forth, or to be set forth, in such Shelf Registration Statement by delivering to the Company a written request to so participate within ten (10) days after the Company notifies each Holder in writing of the effectiveness of the Shelf Registration Statement. Subject to Section 2(c), the Company will use its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective (including by filing a new Shelf Registration Statement on or prior to the date any prior Shelf Registration Statement would become unusable under the Securities Act) until the earlier of (i) two (2) years after the Shelf Registration Statement has been declared effective; (ii) the date on which all Registrable Securities covered by the Shelf Registration Statement have been sold thereunder in accordance with the plan and method of distribution disclosed in the prospectus included in the Shelf Registration Statement, or otherwise cease to be Registrable Securities; and (iii) the date on which this agreement terminates pursuant to Section 23. (ii) Following the Rights Effective Date, at any time that a Shelf Registration Statement is effective, if any Holder delivers a notice to the Company (a “Take-Down Notice”) stating that it intends to sell all or part of its Registrable Securities included by it on the Shelf Registration Statement in an Underwritten Offering (a “Shelf Offering”), then, the Company shall promptly amend or supplement the Shelf Registration Statement as may be necessary in order to enable such Registrable Securities to be distributed pursuant to the Shelf Offering. (iii) At any time after the Rights Effective Date, Holders may request by written notice delivered to the Company (a “Demand Notice”) that the Company register under the Securities Act all or any portion (subject to Section 2(a)(v)) of the Registrable Securities then held by Holders, for sale in the manner specified in such Demand Notice (including, but not limited to, an Underwritten Offering) (a “Demand Registration”). In each such case, the Demand Notice shall specify the number of Registrable Securities for which registration is requested and the proposed manner of disposition of such securities. (iv) The Company shall use its commercially reasonable efforts to file with the SEC within twenty (20) days after the Company’s receipt of a Demand Notice a registration statement for the public offering and sale, in accordance with the method of disposition specified by Holders in such Demand Notice, of the number of Registrable Securities specified in such notice, and thereafter use its commercially reasonable efforts to cause such registration statement to become effective within forty-five (45) days after its filing. Such registration statement may be on Form S-3 or another appropriate form that the Company is eligible to use and that is reasonably acceptable to the managing underwriter, if any. A Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least ninety (90) days or such shorter period in which all Registrable Securities included in such Demand Registration have actually been sold thereunder (provided, that such period shall be extended for a period of time equal to the period the holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to ninety (90) days after effectiveness, to any stop order, injunction or other order or requirement of the SEC or other governmental authority, other than by reason of any act or omission by the applicable Selling Stockholders. Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company and reasonably acceptable to the requesting Holders. (v) The Company shall not have any obligation hereunder to register any Registrable Securities under Section 2(a)(ii) for a Demand Registration or an underwritten Shelf Offering unless it shall have received a request from Holders to register at least the lesser of (x) twenty-five percent (25%) of the aggregate amount of Registrable Securities held by all of the Holders and (y) Registrable Securities having a market value of no less than $150 million, in each case as of the date of such request. (vi) If the Company is required to use its commercially reasonable efforts to register Registrable Securities in a registration initiated upon the demand of Holders pursuant to Section 2(a)(ii) of this Agreement and the managing underwriters for such offering advise that the inclusion of all securities sought to be registered pursuant to Section 2 hereof may interfere with an orderly sale and distribution of or may adversely affect the success or price of such offering, then the Company will include in such offering, first, the aggregate number of Registrable Securities requested to be included by Holders pursuant to the Demand Notice, second, the shares of Common Stock of third party stockholders that are entitled to registration rights under Other Registration Rights Agreements (“Third Party Securities”), allocated pro rata among the Third Party Securities as the Company and such third party stockholders may agree or as may be provided in the Other Registration Rights Agreement, and third, all other securities requested or proposed to be included in such registration statement (including shares of Common Stock to be sold for the account of the Company). (b) The obligations of the Company to effect, or to take any action to effect, a Demand Registration or an underwritten Shelf Takedown shall be limited as follows: (i) Between the Closing Date and the Rights Effective Date, Holders do not have the right to require the Company to effect any Demand Registrations or underwritten Shelf Takedowns; (ii) From the period commencing on the Rights Effective Date through the Termination of this Agreement, Holders may require the Company to effect two (2) Demand Registrations or underwritten Shelf Takedowns in any 365-day period; provided, that Holders may not require the Company to effect any such offering prior to ninety (90) days following a previous Demand Registration or underwritten Shelf Takedown; (iii) If a Demand Registration or Shelf Takedown shall have taken the form of a “bought deal” or a “block trade”, in either case representing five percent (5%) or more of the outstanding Common Stock at such time (a “Block Sale”), no Holder shall be permitted in any event to sell additional Registrable Securities pursuant to a Shelf Takedown for ninety (90) days following such Block Sale; and (iv) In no event shall the Company be required to include a Holder’s Registrable Securities in a Demand Registration or underwritten Shelf Takedown if such Holder included in any registration under Section 3 and declared effective within sixty (60) calendar days preceding the related Demand Notice at least seventy-five percent (75%) of the Registrable Securities such Holder sought to be included in such registration under Section 3. (c) Notwithstanding any other provision of this Agreement, in the event of a Blackout Period the Company shall have the right to defer or suspend the filing or effectiveness of a registration statement relating to any registration requested under Section 2(a)(i) (1) until the expiration of the applicable Blackout Period and (2) for a reasonable period of time not to exceed sixty (60) days if a prior registration statement of the Company for an underwritten public offering by the Company of its securities was declared effective by the SEC less than ninety (90) days prior to the anticipated effective date of the requested registration. In the event of an Information Blackout under clause (1) of the definition thereof, the Company shall deliver to the Holders requesting registration a certificate signed by either the chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the board of directors of the Company, the conditions described in clause (1) of the definition of Information Blackout are met. Such certificate shall contain an approximation of the anticipated delay. (d) Any Demand Notice may be revoked by notice from the Holder to the Company prior to the effective date of the corresponding registration statement; provided, that such revoked Demand Notice will count for purposes of Section 2(b) unless the Company is promptly reimbursed for all out-of-pocket expenses (including fees of outside counsel and accountants and other Registration Expenses) incurred by the Company relating to the registration requested pursuant to such revoked Demand Notice. A Demand Notice may not be made for a minimum of ninety (90) calendar days after the revocation of an earlier Demand Notice. (e) Any time that a Demand Registration involves an Underwritten Offering, the Company (in consultation with the Holders) shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities; provided, that such investment banker(s) and manager(s) shall be reasonably acceptable to the Holders (such acceptance not to be unreasonably withheld, conditioned or delayed).

Shelf Registration Statement Demand Registration. (a) Subject to the terms and conditions contained herein (including the limitations set forth in Section 2(b4.1(b), Section 2(c4.1(c) and Section 74.6): (i) The No later than four Business Days after the Closing Date, the Company shall use commercially reasonable efforts to prepare and file with the SEC a shelf registration statement on Form S-3 (or any successor form (except that if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, such registration shall be on another appropriate form) providing for continuous resales of securities pursuant to Rule 415 of the Securities Act (a “Shelf Registration Statement”) with respect to sales of Registrable Securities which may be made by the Holders, and shall use best commercial efforts to cause such Shelf Registration Statement to be declared effective by the SEC on as soon as reasonably practicable (and, in any event, no later than three Business Days after the Company is notified by the SEC that such Shelf Registration Statement will not be reviewed or prior is no longer subject to further review and comments) after the Closing Date (the “Rights Effective Date”). Upon the demand of Holders pursuant to a notice made at any time and from time to time beginning ten (10) days two Business Days prior to the Rights Effective Date, the Company will facilitate, beginning on the Rights Effective Date, in the manner described in this Section 2(a)(i4.1(a)(i), a “takedown” of shares of Common Stock off of such Shelf Registration Statement (a “Shelf Takedown”), including, subject to the limitations set forth in Section 2(a)(v), including an Underwritten Offering. Notwithstanding the foregoing, if the Company is a WKSI, the Company shall file, on or prior to the Rights Effective Date, the a Shelf Registration Statement in the form of an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) or any successor form thereto registering all Registrable Securities then held by such Holders. Within ten (10) days after the Shelf Registration Statement is declared effective, the Company will deliver written notice thereof to all other Holders. Each Holder may elect to participate with respect to all or any portion of its Registrable Securities in the Shelf Registration Statement in accordance with the plan and method of distribution set forth, or to be set forth, in such Shelf Registration Statement by delivering to the Company a written request to so participate within ten (10) days after the Company notifies each Holder in writing of the effectiveness of the Shelf Registration Statement. Subject to Section 2(c4.1(c), the Company will use its commercially reasonable best commercial efforts to keep the Shelf Registration Statement continuously effective (including by filing a new Shelf Registration Statement on or prior to the date any prior Shelf Registration Statement would become unusable under the Securities Act) until the earlier of (i) two (2) years after the Shelf Registration Statement has been declared effective; (ii) the date on which all Registrable Securities covered by the Shelf Registration Statement have been sold thereunder in accordance with the plan and method of distribution disclosed in the prospectus included in the Shelf Registration Statement, Statement or otherwise cease to be Registrable Securities; , and (iiiii) the date on which the obligations under this agreement terminates Article IV terminate pursuant to Section 234.11. (ii) Following the Rights Effective Date, at any time that a Shelf Registration Statement is effective, if any Holder delivers a notice to the Company (a “Take-Down Notice”) stating that it intends to sell all or part of its Registrable Securities included by it on the Shelf Registration Statement in an Underwritten Offering (a “Shelf Offering”), then, the Company shall promptly amend or supplement the Shelf Registration Statement as may be necessary in order to enable such Registrable Securities to be distributed pursuant to the Shelf Offering. (iii) At any time after the Rights Restricted Period (the “Demand Effective Date”), Holders may request by written notice delivered to the Company (a “Demand Notice”) that the Company register under the Securities Act all or any portion (subject to Section 2(a)(v)) of the Registrable Securities then held by Holders, for sale in the manner specified in such Demand Notice (including, but not limited to, an Underwritten Offering) (a “Demand Registration”); provided, however, that the Holders may not deliver a Demand Notice with respect to any Registrable Securities for which a registration statement is effective under the Securities Act in accordance with the terms and conditions of this Agreement. In each such case, the Demand Notice shall specify the number of Registrable Securities for which registration is requested and the proposed manner of disposition of such securities. (iv) The Company shall use its commercially reasonable best commercial efforts to file with the SEC within twenty (20) 20 days after the Company’s receipt of a Demand Notice a registration statement for the public offering and sale, in accordance with the method of disposition specified by Holders in such Demand Notice, of the number of Registrable Securities specified in such notice, and thereafter use its commercially reasonable best commercial efforts to cause such registration statement to become effective within forty-five (45) 45 days after its filing. Such registration statement may be on Form S-3 or another appropriate form that the Company is eligible to use and that is reasonably acceptable to the managing underwriter, if any. A Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least ninety (90) 180 days or such shorter period in which all Registrable Securities included in such Demand Registration have actually been sold thereunder (provided, that such period shall be extended for a period of time equal to the period the holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (ii) if, after it has become effective, such Demand Registration becomes subject, prior to ninety (90) 180 days after effectiveness, to any stop order, injunction or other order or requirement of the SEC or other governmental authority, other than by reason of any act or omission by the applicable Selling Stockholders. Demand Registrations shall be on such appropriate registration form of the Commission SEC as shall be selected by the Company and reasonably acceptable to the requesting HoldersHolder. (v) The Company shall not have any obligation hereunder to register any Registrable Securities under Section 2(a)(ii) for a Demand Registration or an underwritten Shelf Offering unless it shall have received a request from Holders to register at least the lesser of (x) twenty-five percent (25%) of the aggregate amount of Registrable Securities held by all of the Holders and (y) Registrable Securities having a market value of no less than $150 million, in each case as of the date of such request. (vi) If the Company is required to use its commercially reasonable best commercial efforts to register Registrable Securities in a registration initiated upon the demand of Holders pursuant to this Section 2(a)(ii4.1(a) of this Agreement and the managing underwriters for such offering advise that the inclusion of all securities sought to be registered pursuant to this Section 2 hereof 4.1 may interfere with an orderly sale and distribution of or may adversely affect the success or price of such offering, then the Company will include in such offering, first, the aggregate number of Registrable Securities requested to be included by Holders pursuant to the Demand Notice, second, the shares of Common Stock of third party stockholders that are entitled to registration rights under Other Registration Rights Agreements (“Third Party Securities”), allocated pro rata among the Third Party Securities as the Company and such third party stockholders may agree or as may be provided in the Other Registration Rights Agreement, and third, all other securities requested or proposed to be included in such registration statement (including shares of Common Stock to be sold for the account of the Company). (b) The obligations of the Company to effect, or to take any action to effect, a Demand Registration or an underwritten Shelf Takedown shall be limited as follows: (i) Between from the period commencing on the Closing Date and until the Rights Effective Date, Holders do not have the right to require the Company to effect any Demand Registrations or underwritten Shelf Takedowns; (ii) From from the period commencing on the Rights Closing Date until the Demand Effective Date through the Termination of this AgreementDate, Holders may require do not have the Company right to effect two (2) Demand Registrations or underwritten Shelf Takedowns in any 365-day period; provided, that Holders may not require the Company to effect any such offering Demand Registrations; (iii) from the period commencing on the Demand Effective Date through the date on which the obligations under this Article IV terminate pursuant to Section 4.11, Holders do not have the right to require the Company to effect any Demand Registration prior to ninety (90) 365 days following a previous Demand Registration or underwritten Shelf Takedown; (iii) If a Demand Registration or Shelf Takedown shall have taken the form of a “bought deal” or a “block trade”, in either case representing five percent (5%) or more of the outstanding Common Stock at such time (a “Block Sale”), no Holder shall be permitted in any event to sell additional Registrable Securities pursuant to a Shelf Takedown for ninety (90) days following such Block SaleRegistration; and (iv) In no event shall the Company shall not be required to include a Holder’s Registrable Securities effect more than four Demand Registrations in a Demand Registration or underwritten Shelf Takedown if such Holder included in any registration under Section 3 and declared effective within sixty (60) calendar days preceding the related Demand Notice at least seventy-five percent (75%) of the Registrable Securities such Holder sought to be included in such registration under Section 3aggregate. (c) Notwithstanding any other provision of this Agreement, in the event of a Blackout Period the Company shall have the right to defer or suspend the filing or effectiveness of a registration statement relating to any registration requested under Section 2(a)(i) (1) until the expiration of the applicable Blackout Period and (2) for a reasonable period of time not to exceed sixty (60) days if a prior registration statement of the Company for an underwritten public offering by the Company of its securities was declared effective by the SEC less than ninety (90) days prior to the anticipated effective date of the requested registration. In the event of an Information Blackout under clause (1) of the definition thereof, the Company shall deliver to the Holders requesting registration a certificate signed by either the chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the board of directors of the Company, the conditions described in clause (1) of the definition of Information Blackout are met. Such certificate shall contain an approximation of the anticipated delay. (d) Any Demand Notice may be revoked by notice from the Holder to the Company prior to the effective date of the corresponding registration statement; provided, that such revoked Demand Notice will count for purposes of Section 2(b) unless the Company is promptly reimbursed for all out-of-pocket expenses (including fees of outside counsel and accountants and other Registration Expenses) incurred by the Company relating to the registration requested pursuant to such revoked Demand Notice. A Demand Notice may not be made for a minimum of ninety (90) calendar 60 days after the revocation of an earlier Demand Notice. (ed) Any time that a Demand Registration involves an Underwritten Offering, the Company (in consultation with the Holders) Holders shall select the investment banker(s) and manager(s) that will serve as managing underwriters (including which such managing underwriters will serve as lead or co-lead) and underwriters with respect to the offering of such Registrable Securities; provided, that such investment banker(s) and manager(s) shall be reasonably acceptable to the Holders Company (such acceptance not to be unreasonably withheld, conditioned or delayed).