Common use of Shelf Take-Downs Clause in Contracts

Shelf Take-Downs. Any Holder who (i) is a Plan Sponsor or an Affiliate thereof or (ii) together with its Affiliates, beneficially owns Registrable Securities equal to $100 million or more of the then outstanding Shares, to the extent such Holder’s Registrable Securities are included in an effective Shelf Registration Statement (each of the Holders in clause (i) and (ii) above, a “Shelf Holder”) may initiate an offering or sale of all or part of such Registrable Securities (a “Shelf Take-Down”), in which case the provisions of this Section 2.2 shall apply. Notwithstanding the foregoing: (i) any such Shelf Holder may initiate an unlimited number of Non-Marketed Shelf Take-Downs pursuant to Section 2.2(d) below; and (ii) any such Shelf Holder may initiate an unlimited number of Underwritten Offerings (including any block trade) pursuant to Section 2.2(c) below; provided that in each case, the Registrable Securities proposed to be sold by the initiating Shelf Holder (and if applicable, other co-initiating Shelf Holders) shall be required to (x) have a reasonably anticipated aggregate offering price of at least $50.0 million (before deduction of underwriting discounts and commissions) or (y) constitute all remaining Registrable Securities held by such Shelf Holder (and, if applicable, other co-initiating Shelf Holders); provided, however, that the Company shall have no obligation to facilitate or participate in more than three Underwritten Offerings that are initiated by a Holder pursuant to this Section 2.2 during any 12-month period (and no more than one such Underwritten Offering in any 90-day period).

Shelf Take-Downs. Any Holder who (i) is a Plan Sponsor or an Affiliate thereof or (ii) together with its Affiliates, beneficially owns Registrable Securities equal to $100 million or more of the then outstanding Shares, to the extent such Holder’s whose Registrable Securities are included in an effective Shelf Registration Statement (each of the Holders in clause (i) and (ii) above, a “Shelf Holder”) may initiate an offering or sale of all or part of such Registrable Securities (a “Shelf Take-Down”), in which case the provisions of this Section 2.2 shall apply. Notwithstanding the foregoing: (i) any such Shelf Holder may initiate an unlimited number of Non-Marketed Shelf Take-Downs pursuant to Section 2.2(d) below; andprovided, that such Non-Marketed Shelf Take-Downs do not constitute an Underwritten Shelf Take-Down; (ii) any such Shelf Holder each Apollo Stockholder may initiate an unlimited number of Underwritten Offerings (including any block trade) pursuant to Section 2.2(c) below; provided provided, that, subject to Section 8.4, each Apollo Stockholder may provide a Transferee with the following Underwritten Shelf Take-Down rights: (A) such Transferee may not initiate any Underwritten Offerings (including any block trade) if such Transferee acquires less than 5% of the outstanding Shares, (B) such Transferee may initiate one Underwritten Offering (including any block trade) pursuant to Section 2.2(c) below if such Transferee acquires at least 5% but not more than 15% of the outstanding Shares and (C) such Transferee may initiate up to two Underwritten Offerings (including any block trade) pursuant to Section 2.2(c) below if such Transferee acquires at least 15% of the outstanding Shares; and (iii) the SCP Investor may initiate, in the aggregate, up to three Underwritten Offerings and the Datapipe Investor may initiate one Underwritten Offering (in each case, including any block trades and reduced by the number of Demand Registrations previously exercised by such Holder under Section 2.1) pursuant to Section 2.2(c) below; provided, that (A) no Underwritten Shelf Take-Down shall be deemed to have been exercised or to count against the number of Demand Registrations for the purposes of Section 2.1 if such Shelf Holder is not able to sell all of the Registrable Securities proposed to be sold therein as a result of the participation of any other Holder in any such Underwritten Shelf Take-Down and the application of Section 2.5(b); (B) the Company shall not be obligated to take any action to effect more than one Demand Registration or Underwritten Shelf Take-Down at the request of the SCP Investor in any 12-month period; and (C) subject to Section 8.4, the SCP Investor and the Datapipe Investor each may provide a Transferee with all of (or in the case of the SCP Investor, a portion of) its remaining Underwritten Shelf Take-Down rights under this Section 2.2(b)(iii) so long as the SCP Investor or the Datapipe Investor, as applicable, Transfers at least 50% of the Shares that it holds as of the date of this Agreement (subject, in each case, to Section 8.16) to such Transferee; and (iv) in the case of clauses (ii) and (iii) of this Section 2.2(b), (A) in each case, the Registrable Securities proposed to be sold by the initiating Shelf Holder (and if applicable, other co-initiating Shelf Holders) shall be required to (x) have a reasonably anticipated aggregate offering price of at least $50.0 66.0 million (before deduction of underwriting discounts and commissions) or (y) constitute all remaining Registrable Securities held by such Shelf Holder and (andB) if the Company has previously effected a Shelf Take-Down that is an Underwritten Offering pursuant to this Section 2.2, if applicable, other co-initiating Shelf Holders); provided, however, that the Company shall have no obligation not be required to facilitate or participate in more than three effect an additional Shelf Take-Down that is an Underwritten Offerings that are initiated by a Holder Offering pursuant to this Section 2.2 during any 12until a period of 75 days shall have elapsed from the date of such prior Shelf Take-month period (and no more than one such Down that was an Underwritten Offering in any 90-day period)Offering.

Shelf Take-Downs. Any Holder who (i) is a Plan Sponsor or an Affiliate thereof or (ii) together with its Affiliates, beneficially owns Registrable Securities equal to $100 million or more of the then outstanding Shares, to the extent such Holder’s whose Registrable Securities are included in an effective Shelf Registration Statement (each of the Holders in clause (i) and (ii) above, a “Shelf Holder”) may initiate an offering or sale of all or part of such Registrable Securities (a “Shelf Take-Down”), in which case the provisions of this Section 2.2 shall apply. Notwithstanding the foregoing: (i) any such Shelf Holder may initiate an unlimited number of Non-Marketed Shelf Take-Downs pursuant to Section 2.2(d) below; andprovided, that such Non-Marketed Shelf Take-Downs do not constitute an Underwritten Shelf Take-Down; (ii) any such Shelf Holder each Javitt Stockholder may initiate an unlimited number of Underwritten Offerings (including any block trade) pursuant to Section 2.2(c) below; provided that provided, that, subject to Section 8.4, each Javitt Stockholder may provide a Transferee with the following Underwritten Shelf Take-Down rights: (A) such Transferee may not initiate any Underwritten Offerings (including any block trade) if such Transferee acquires less than 5% of the outstanding Shares, (B) such Transferee may initiate one Underwritten Offering (including any block trade) pursuant to Section 2.2(c) below if such Transferee acquires at least 5% but not more than 15% of the outstanding Shares and (C) such Transferee may initiate up to two Underwritten Offerings (including any block trade) pursuant to Section 2.2(c) below if such Transferee acquires at least 15% of the outstanding Shares; and (iii) [reserved]; and (iv) in the case of clauses (ii) and (iii) of this Section 2.2(b), (A) in each case, the Registrable Securities proposed to be sold by the initiating Shelf Holder (and if applicable, other co-initiating Shelf Holders) shall be required to (x) have a reasonably anticipated aggregate offering price of at least $50.0 50 million (before deduction of underwriting discounts and commissions) or (y) constitute all remaining Registrable Securities held by such Shelf Holder and (andB) if the Company has previously effected a Shelf Take-Down that is an Underwritten Offering pursuant to this Section 2.2, if applicable, other co-initiating Shelf Holders); provided, however, that the Company shall have no obligation not be required to facilitate or participate in more than three effect an additional Shelf Take-Down that is an Underwritten Offerings that are initiated by a Holder Offering pursuant to this Section 2.2 during any 12until a period of 75 days shall have elapsed from the date of such prior Shelf Take-month period (and no more than one such Down that was an Underwritten Offering in any 90-day period)Offering.

Shelf Take-Downs. Any Holder who (i) is a Plan Sponsor or an Affiliate thereof or (ii) together with its Affiliates, beneficially owns Registrable Securities equal to $100 million or more of the then outstanding Shares, to the extent such Holder’s whose Registrable Securities are included in an effective Shelf Registration Statement (each of the Holders in clause (i) and (ii) above, a “Shelf Holder”) may initiate an offering or sale of all or part of such Registrable Securities (a “Shelf Take-Down”), in which case the provisions of this Section 2.2 shall apply. Notwithstanding the foregoing: (i) any such Shelf Holder may initiate an unlimited number of Non-Marketed Shelf Take-Downs pursuant to Section 2.2(d) below; andprovided, that such Non-Marketed Shelf Take-Downs do not constitute an Underwritten Shelf Take-Down; (ii) any such Shelf Holder each Apollo Stockholder may initiate an unlimited number of Underwritten Offerings (including any block trade) pursuant to Section 2.2(c) below; provided provided, that, subject to Section 8.4, each Apollo Stockholder may provide a Transferee with the following Underwritten Shelf Take-Down rights: (A) such Transferee may not initiate any Underwritten Offerings (including any block trade) if such Transferee acquires less than 5% of the outstanding Shares, (B) such Transferee may initiate one Underwritten Offering (including any block trade) pursuant to Section 2.2(c) below if such Transferee acquires at least 5% but not more than 15% of the outstanding Shares and (C) such Transferee may initiate up to two Underwritten Offerings (including any block trade) pursuant to Section 2.2(c) below if such Transferee acquires at least 15% of the outstanding Shares; and (iii) the SCP Investor may initiate, in the aggregate, up to three Underwritten Offerings and the Datapipe Investor may initiate one Underwritten Offering (in each case, including any block trades and reduced by the number of Demand Registrations previously exercised by such Holder under Section 2.1) pursuant to Section 2.2(c) below; provided, that (A) no Underwritten Shelf Take-Down shall be deemed to have been exercised or to count against the number of Demand Registrations for the purposes of Section 2.1 if such Shelf Holder is not able to sell all of the Registrable Securities proposed to be sold therein as a result of the participation of any other Holder in any such Underwritten Shelf Take-Down and the application of Section 2.5(b); (B) the Company shall not be obligated to take any action to effect more than one Demand Registration or Underwritten Shelf Take-Down at the request of the SCP Investor in any 12-month period; and (C) subject to Section 8.4, the SCP Investor and the Datapipe Investor each may provide a Transferee with all of (or in the case of the SCP Investor, a portion of) its remaining Underwritten Shelf Take-Down rights under this Section 2.2(b)(iii) so long as the SCP Investor or the Datapipe Investor, as applicable, Transfers at least 50% of the Shares that it holds as of the date of this Agreement (subject, in each case, to Section 8.16) to such Transferee; and (iv) in the case of clauses (ii) and (iii) of this Section 2.2(b), (A) in each case, the Registrable Securities proposed to be sold by the initiating Shelf Holder (and if applicable, other co-initiating Shelf Holders) shall be required to (x) have a reasonably anticipated aggregate offering price of at least $50.0 66.0 million (before deduction of underwriting discounts and commissions) or (y) constitute all remaining Registrable Securities held by such Shelf Holder and (andB) if the Table of Contents Company has previously effected a Shelf Take-Down that is an Underwritten Offering pursuant to this Section 2.2, if applicable, other co-initiating Shelf Holders); provided, however, that the Company shall have no obligation not be required to facilitate or participate in more than three effect an additional Shelf Take-Down that is an Underwritten Offerings that are initiated by a Holder Offering pursuant to this Section 2.2 during any 12until a period of 75 days shall have elapsed from the date of such prior Shelf Take-month period (and no more than one such Down that was an Underwritten Offering in any 90-day period)Offering.

Shelf Take-Downs. Any Holder who (i) is a Plan Sponsor or an Affiliate thereof or (ii) together with its Affiliates, beneficially owns Registrable Securities equal to $100 million or more of the then outstanding Shares, to the extent such Holder’s whose Registrable Securities are included in an effective Shelf Registration Statement (each of the Holders in clause (i) and (ii) above, a “Shelf Holder”) may initiate an offering or sale of all or part of such Registrable Securities (a “Shelf Take-Down”), in which case the provisions of this Section 2.2 shall apply. Notwithstanding the foregoing: (i) any such Shelf Holder may initiate an unlimited number of Non-Marketed Shelf Take-Downs pursuant to Section 2.2(d) below; andprovided, that such Non-Marketed Shelf Take-Downs do not constitute an Underwritten Shelf Take-Down; (ii) any such Shelf Holder each Javitt Stockholder may initiate an unlimited number of Underwritten Offerings (including any block trade) pursuant to Section 2.2(c) below; provided that provided, that, subject to Section 8.4, each Javitt Stockholder may provide a Transferee with the following Underwritten Shelf Take-Down rights: (A) such Transferee may not initiate any Underwritten Offerings (including any block trade) if such Transferee acquires less than 5% of the outstanding Shares, (B) such Transferee may initiate one Underwritten Offering (including any block trade) pursuant to Section 2.2(c) below if such Transferee acquires at least 5% but not more than 15% of the outstanding Shares and (C) such Transferee may initiate up to two Underwritten Offerings (including any block trade) pursuant to Section 2.2(c) below if such Transferee acquires at least 15% of the outstanding Shares; and (iii) [reserved]; and (iv) in the case of clauses (ii) and (iii) of this Section 2.2(b), (A) in each case, the Registrable Securities proposed to be sold by the initiating Shelf Holder (and if applicable, other co-initiating Shelf Holders) shall be required to (x) have a reasonably anticipated aggregate offering price of at least $50.0 [●] million (before deduction of underwriting discounts and commissions) or (y) constitute all remaining Registrable Securities held by such Shelf Holder and (andB) if the Company has previously effected a Shelf Take-Down that is an Underwritten Offering pursuant to this Section 2.2, if applicable, other co-initiating Shelf Holders); provided, however, that the Company shall have no obligation not be required to facilitate or participate in more than three effect an additional Shelf Take-Down that is an Underwritten Offerings that are initiated by a Holder Offering pursuant to this Section 2.2 during any 12until a period of 75 days shall have elapsed from the date of such prior Shelf Take-month period (and no more than one such Down that was an Underwritten Offering in any 90-day period)Offering.

Shelf Take-Downs. Any Holder who (i) is a Plan Sponsor or an Affiliate thereof or (ii) together with its AffiliatesSubject to Section 2.8(c), beneficially owns Registrable Securities equal to $100 million or more of the then outstanding Shares, to the extent such Holder’s Registrable Securities are included in an effective Shelf Registration Statement (each of the Holders in clause (i) and (ii) above, a “Shelf Holder”) may initiate an offering or sale of all or part of such Registrable Securities pursuant to a Shelf Registration Statement (each, a “Shelf Take-Down”) may be initiated by any of the Shelf Holders (each, an “Initiating Shelf Take-Down Holder”) (other than an Underwritten Shelf-Take Down or Marketed Underwritten Shelf-Take Down which, for the avoidance of doubt, may only be initiated by a Shelf Take-Down Initiating Sponsor Holder pursuant to Section 2.1(d)(ii) or Section 2.1(d)(iii), respectively). Except as set forth in which case Section 2.1(d)(iii) with respect to Marketed Underwritten Shelf Take-Downs, each such Initiating Shelf Take-Down Holder shall not be required to permit the provisions offer and sale of this Section 2.2 shall applyRegistrable Securities by other Shelf Holders or Third Party Shelf Holders in connection with any such Shelf Take-Down initiated by such Initiating Shelf Take-Down Holder. Notwithstanding the foregoing: (iA) each of the Management Holders (collectively), together with their respective designated transferees or successors pursuant to Section 2.8(a), may only initiate a total of four (4) Shelf Take-Downs in the aggregate pursuant to this Section 2.1(d)(i) in any consecutive 12-month period; (B) each of the Warrant Holders (collectively), together with their respective designated transferees or successors pursuant to Section 2.8(a), may only initiate a total of four (4) Shelf Take-Downs in the aggregate pursuant to this Section 2.1(d)(i) in any consecutive 12-month period; (C) no Management Holder, together with its designated transferees or successors pursuant to Section 2.8(a), may initiate a Shelf Take-Down pursuant to this Section 2.1(d)(i) which, together with any Registrable Securities included by other Management Holders, contemplates the distribution or sale of Registrable Securities in any one (1) Shelf-Take Down having a reasonably anticipated net aggregate offering price of less than $2,500,000; and (D) no Warrant Holder, together with its designated transferees or successors pursuant to Section 2.8(a), may initiate a Shelf Take-Down pursuant to this Section 2.1(d)(i) which, together with any Registrable Securities included by other Warrant Holders, contemplates the distribution or sale of Registrable Securities in any one (1) Shelf-Take Down having a reasonably anticipated net aggregate offering price of less than $2,500,000. (ii) Subject to Section 2.8(c), if the Initiating Shelf Take-Down Holder is one (1) or more Shelf Participating Holder(s) that is or are a Sponsor Holder(s) (the “Shelf Take-Down Initiating Sponsor Holders”) and such Shelf Take-Down Initiating Sponsor Holders elect by written request to the Company (an “Underwritten Shelf Take-Down Notice”), a Shelf Take-Down shall be in the form of an underwritten offering (an “Underwritten Shelf Take-Down”) and if necessary or if requested by the Shelf Take-Down Initiating Sponsor Holders, the Company shall amend or supplement the Shelf Registration Statement for such purpose as soon as practicable. Such Shelf Take-Down Initiating Sponsor Holders shall have the right to select the managing underwriter or underwriters to administer such Underwritten Shelf Take-Down; provided that such managing underwriter or underwriters shall be reasonably acceptable to the Company. Notwithstanding the delivery of any Underwritten Shelf Take-Down Notice, all determinations as to whether to complete any Underwritten Shelf Take-Down and as to the timing, manner, price and other terms and conditions of any Underwritten Shelf Take-Down shall be at the sole discretion of the Shelf Take-Down Initiating Sponsor Holders. (iii) If the plan of distribution set forth in any Underwritten Shelf Take-Down Notice includes a customary “road show” (including an “electronic road show”) or other substantial marketing effort by the Company and the underwriters over a period expected to exceed 48 hours (a “Marketed Underwritten Shelf Take-Down”), promptly upon delivery of such Underwritten Shelf Take-Down Notice (but in no event more than two (2) Business Days thereafter), the Company shall promptly deliver a written notice (a “Marketed Underwritten Shelf Take-Down Notice”) of such Marketed Underwritten Shelf Take-Down to all Shelf Holders of Registrable Securities under such Shelf Registration Statement (other than the Shelf Take-Down Initiating Sponsor Holders), and, in each case subject to Section 2.1(d)(iv) and Section 2.8(c), the Company shall include in such Marketed Underwritten Shelf Take-Down all such Registrable Securities of such Shelf Holders that are registered on such Shelf Registration Statement for which the Company has received written requests, which requests must specify the aggregate amount of such Registrable Securities of such Holder may initiate an unlimited number to be offered and sold pursuant to such Marketed Underwritten Shelf Take-Down, for inclusion therein within two (2) Business Days after the date that such Marketed Underwritten Shelf Take-Down Notice has been delivered. Notwithstanding the delivery of Nonany Marketed Underwritten Shelf Take-Down Notice, all determinations as to whether to complete any Marketed Underwritten Shelf Take-Down and as to the timing, manner, price and other terms and conditions of any Marketed Underwritten Shelf Take-Down shall be at the sole discretion of the Shelf Take-Down Initiating Sponsor Holders. Each of the Shelf Holders agrees to reasonably cooperate with each of the other Shelf Holders to establish notice, delivery and documentation procedures and measures to facilitate such other Shelf Holder’s participation in future potential Marketed Underwritten Shelf Take-Downs pursuant to Section 2.2(d) below; and2.1(d)(iii)-(iv). (iiiv) The right of any Shelf Holders to participate in an Underwritten Shelf Take-Down or Marketed Underwritten Shelf Take-Down shall be conditioned upon such Shelf Holder’s compliance with the terms and conditions of this Section 2.1(d)(iv). In connection with any Underwritten Shelf Take-Down or Marketed Underwritten Shelf-Take Down, the Company shall, together with all Shelf Holders and Third Party Shelf Holders of Registrable Securities of the Company proposing to distribute their securities through such Underwritten Shelf Take-Down or Marketed Underwritten Shelf Take-Down in accordance with this Section 2.1(d), enter into an underwriting agreement in customary form (containing such representations and warranties by the Company and such other terms as are generally prevailing in agreements of that type) with the managing underwriter or underwriters selected by the Shelf Take-Down Initiating Sponsor Holders in accordance with Section 2.1(d)(ii). The Shelf Participating Holders shall cooperate with the Company in the negotiation of such underwriting agreement and shall give consideration to the reasonable suggestions of the Company regarding the form thereof. Such underwriting agreement shall contain such representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the Shelf Holders and Third Party Shelf Holders a party thereto as are customarily made by issuers to selling stockholders in secondary underwritten public offerings. No Shelf Holder shall be entitled to participate in an Underwritten Shelf Take-Down or Marketed Underwritten Shelf Take-Down in accordance with this Section 2.1(d) unless such Shelf Holder may initiate an unlimited number completes and executes all questionnaires, powers of Underwritten Offerings (including attorney, indemnities and other documents required under the terms of such underwriting agreement. Notwithstanding any block trade) pursuant to other provision of this Section 2.2(c) below; provided that in each case2.1, if the managing underwriter or underwriters of a proposed underwritten offering of the Registrable Securities proposed included in an Underwritten Shelf Take-Down or Marketed Underwritten Shelf Take-Down shall advise the Company and the Shelf Take-Down Initiating Sponsor Holders that the number of securities requested to be included in such Underwritten Shelf Take-Down or Marketed Underwritten Shelf Take-Down exceeds the number which can be sold by in such offering without being likely to have a significant adverse effect on the initiating price, timing or distribution of the securities offered or the market for the securities offered, then the Company shall so advise all Shelf Holder Holders of Registrable Securities that have requested to participate in such Underwritten Shelf Take-Down or Marketed Underwritten Shelf Take-Down (other than the Shelf Take-Down Initiating Sponsor Holders), and if applicablethe number of shares of Registrable Securities that may be included in such Underwritten Shelf Take-Down or Marketed Underwritten Shelf Take-Down (i) first, other co-initiating Shelf Holders) shall be required allocated pro rata among the Shelf Holders (including the Shelf Take-Down Initiating Sponsor Holders and other Shelf Participating Holders, as applicable) that have requested to (x) have a reasonably anticipated aggregate offering price participate in such Underwritten Shelf Take-Down or Marketed Underwritten Shelf Take-Down based on the relative number of at least $50.0 million (before deduction of underwriting discounts and commissions) or (y) constitute all remaining Registrable Securities then held by each such Shelf Holder (andprovided that any securities thereby allocated to a Shelf Holder that exceed such Shelf Holder’s request shall be reallocated among the remaining requesting Shelf Holders in like manner), (ii) second, and only if applicableall the securities referred to in clause (i) have been included in such registration, other co-initiating Shelf Holders); provided, however, the number of securities that the Company proposes to include in such registration that, in the opinion of the managing underwriter or underwriters, can be sold without having such adverse effect and (iii) third, and only if all of the securities referred to in clause (ii) have been included in such registration, any other securities eligible for inclusion in such registration that, in the opinion of the managing underwriter or underwriters, can be sold without having such adverse effect. No Registrable Securities excluded from an Underwritten Shelf Take-Down or Marketed Underwritten Shelf Take-Down by reason of the managing underwriter’s or underwriters’ marketing limitation shall have no obligation to facilitate or participate be included in more than three Underwritten Offerings that are initiated by a Holder pursuant to this Section 2.2 during any 12-month period (and no more than one such Underwritten Offering in any 90-day period)underwritten offering.