Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) that the underwriters determine in good faith is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to be registered by the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 4 contracts
Samples: Investors’ Rights Agreement (Anaplan, Inc.), Investors’ Rights Agreement (Anaplan, Inc.), Rights Agreement
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.2 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other stockholders’ securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such the offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners and any trusts for the benefit of any of the foregoing persons Persons, or any Person who shares an investment advisor with the Holder, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 4 contracts
Samples: Investors’ Rights Agreement (PureTech Health PLC), Investors’ Rights Agreement (PureTech Health PLC), Investors’ Rights Agreement (PureTech Health PLC)
Underwriting Requirements. In connection with any underwritten public offering involving an underwriting of shares of the Company’s capital stockshare capital, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting offering unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) (which underwriter or underwriters shall be reasonably acceptable to the participating Holders) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the an underwriter or underwriters determine in good faith will not jeopardize the success of the offering selected by the Company. If Notwithstanding any other provision of this Agreement, if the total amount underwriter determines in good faith that marketing factors require a limitation of securities, the number of shares (including Registrable Securities) to be underwritten, requested the number of shares that may be included in the underwriting shall be allocated, (i) first, to the Company, (ii) second, to the Holders of Preferred Registrable Securities pro-rata, based on the total number of Preferred Registrable Securities then held by stockholders the Holders of Preferred Registrable Securities requesting to be included in such offering exceeds the amount of securities sold (other than by the Company) that the underwriters determine in good faith is compatible with the success of the offeringregistration; provided, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securitieshowever, that the underwriters determine in good faith will not jeopardize the success number of the offering. The Company will include Preferred Registrable Securities to be included in such underwriting and registration in the following order of priority: (i) first, the securities the Company proposes to sell shall not be included; (ii) second, the number of Registrable Securities that are requested to be registered by the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities shares included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above registration; and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder third, to the Founder with respect to the number of Founder Registrable Securities that the Founder is requesting to be included in such offering if any registration. Any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded or withdrawn from such offeringunderwriting shall be excluded and withdrawn from the registration. For purposes of the above sentence second preceding sentence, concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders shareholders of such Holder, or the estates and family members of any such partners partners, members and retired partners partners, retired members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 3 contracts
Samples: Ordinary Shares Purchase Agreement (monday.com Ltd.), Ordinary Shares Purchase Agreement (monday.com Ltd.), Investors' Rights Agreement (monday.com Ltd.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stockstock pursuant to Section 2.2, the Company shall not be required under this Section 1.3 2.2 to include any of the Holders’ securities Registrable Securities in such underwriting unless they the Holders accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters), and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters and the Company determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders Holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) 15% of the total amount of securities included in such offering, unless (i) such offering is the Initial Offeringinitial public offering of the Company’s securities, or (ii) all other securities, other than securities sold by the Company, are entirely excluded from the offering; in which case case, the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offeringabove. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder Holder that is a Holder holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company company, or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members members, stockholders and stockholders Affiliates of such Holderholder, or the estates and family members of any such partners partners, retired partners, members and retired partners members and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro pro-rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such “selling Holder,” as defined in this sentence.
Appears in 3 contracts
Samples: Rights Agreement (Progenity, Inc.), Rights Agreement (Progenity, Inc.), Rights Agreement (Progenity, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include shall not, without the prior written consent of the holders of at least a majority of the Registrable Securities then held by the Investors exclude any Registrable Securities from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration offering, then the Registrable Securities that are included in the following order of priority: (i) such offering shall be apportioned first, to the securities the Company proposes to sell shall be includedCompany; (ii) second, to the Investors on a pro rata basis based on the total number of Registrable Securities that are requested held by such Investors; and third, to be registered by any stockholder of the selling Holders shall be included Company (other than a Holder) on a pro rata based on basis so long as the number of Registrable Securities held by all selling the Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholdersis not reduced. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders Investors included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (Sight Sciences, Inc.), Investors’ Rights Agreement (Sight Sciences, Inc.), Investors’ Rights Agreement (Sight Sciences, Inc.)
Underwriting Requirements. (i) In connection with any offering involving an underwriting of shares of the Company’s capital stockEquity Securities, the Company shall not be required to Register the Registrable Securities of a Holder under this Section 1.3 to include any of 3 unless such Holder’s Registrable Securities are included in the Holders’ securities in underwritten offering and such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter Holder enters into an underwriting agreement in customary form with the underwriter or underwriters of internationally recognized standing selected in accordance with Section 2.4 and setting forth such terms for the underwritten offering as have been agreed upon between the Company and the underwriters, ; provided that each Holder consents (which consent shall not be unreasonable withheld) to the underwriting discount and then only selling commissions applicable to such Holder and such terms are not less favorable than that applicable to the Company in such quantity as the underwriters determine in good faith will not jeopardize the success case of the an offering that includes Ordinary Shares to be newly issued and sold by the Company. If ; and provided further that the total amount underwriting discount and selling commissions applicable to such Holder will be agreed upon between the underwriter or underwriters and the holders of securities, including a majority of the voting power of all Registrable Securities, requested by stockholders Securities proposed to be included in such Registration and underwritten offering exceeds in other cases. Notwithstanding the amount of securities sold (other than by the Company) that the underwriters determine in good faith is compatible with the success of the offeringforegoing, then the Company shall Holders will not be required to include enter into any “lock-up” agreement unless all officers and directors of the Company and all shareholders individually owning one percent (1%) or more Shares enter into similar agreements (and any such “lock-up” agreement shall, to the extent possible, seek to exclude any transfer of Shares pursuant to enforcement of security under any Facility Document). In the event the underwriters advise Holders seeking Registration of Registrable Securities pursuant to this Section 3 in writing that market factors (including the offering only that aggregate number of such securitiesRegistrable Securities requested to be Registered, including Registrable Securities, that the underwriters determine in good faith will not jeopardize the success general condition of the offering. The Company will include in such registration in market, and the following order status of priority: (i) first, the securities the Company proposes Persons proposing to sell shall be included; (iisecurities pursuant to the Registration) second, require a limitation of the number of Registrable Securities that are to be underwritten, the underwriters may exclude all of the Registrable Securities requested to be registered by the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included Registered in the offering be reduced below thirty IPO and up to seventy-five percent (3075%) of the total amount of securities included Registrable Securities requested to be Registered in such any other public offering, unless such offering is but in any case only after first excluding all other Equity Securities (except for securities sold for the Initial Offering, in which case account of the selling Holders may be excluded if Company) from the underwriters make Registration and underwriting and so long as the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder Registrable Securities to be included in such offering if Registration on behalf of any Registrable Securities held by any Holder (and that such Holder has requested non-excluded Holders are allocated among all non-excluded Holders in proportion, as nearly as practicable, to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder respective amounts of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporationrequested by such Holders to be included. To facilitate the allocation of Shares in accordance with the above provisions, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, Company or the estates and family members underwriters may round the number of any such partners and retired partners and any trusts for Shares allocated to a Holder to the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individualsnearest one hundred (100) Shares.
Appears in 3 contracts
Samples: Shareholders Agreement (OneSmart International Education Group LTD), Shareholders Agreement (OneSmart International Education Group LTD), Shareholders Agreement
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, offering or (iiiii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partnersmembers, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members, retired members and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 3 contracts
Samples: Rights Agreement (Violin Memory Inc), Rights Agreement (Violin Memory Inc), Rights Agreement (Violin Memory Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. Notwithstanding any other provision of this Agreement, if the underwriter determines in such registration in good faith that marketing factors require a limitation of the following order number of priority: (i) first, the securities the Company proposes shares to sell shall be included; (ii) secondunderwritten, the number of Registrable Securities shares that are requested to may be registered by included in the selling Holders underwriting shall be included allocated, first, to the Company; second, to the Holders other than the Common Holders on a pro rata basis based on the total number of Registrable Securities held by all selling the Holders or in such other proportions as shall mutually be agreed to by all such selling than the Common Holders; and (iii) third, to the number of securities that are requested to be registered by other stockholders shall be included Common Holders on a pro rata basis based on the total number of securities Registrable Securities held by all such stockholdersthe Common Holders and fourth, to any stockholder of the Company other than a Holder and/or Common Holder on a pro rata basis. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, offering or (iiiii) any securities held by a party other than a Holder, including for this purpose any securities held by a Common Holder Holder, be included in such offering if any Registrable Securities held by any a Holder (and that such Holder has requested to be registered) requesting registration are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (Liquidia Technologies Inc), ’ Rights Agreement, Investors’ Rights Agreement (Liquidia Technologies Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.2 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other stockholders’ securities (other than securities to be sold by the Company) have been first excluded, excluded from the offering and (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (DoorDash Inc), Investors’ Rights Agreement (DoorDash Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.2 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other stockholders’ securities (other than securities to be sold by the Company) have been first excludedexcluded from the offering, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, offering or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder other than a Common Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnershipprivate equity fund, limited liability company partnership or corporation, the affiliated venture capital funds, private equity funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Peloton Interactive, Inc.), Investors’ Rights Agreement (Peloton Interactive, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include shall not, without the prior written consent of the holders of at least a majority of the Registrable Securities then held by the Investors exclude any Registrable Securities from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration offering, then the Registrable Securities that are included in the following order of priority: (i) such offering shall be apportioned first, to the securities the Company proposes to sell shall be includedCompany; (ii) second, to the Investors on a pro rata basis based on the total number of Registrable Securities that are requested held by such Investors; and third, to be registered by any stockholder of the selling Holders shall be included Company (other than a Holder) on a pro rata based on basis so long as the number of Registrable Securities held by all selling the Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholdersis not reduced. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders Investors included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company company, partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder together with any Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Menlo Therapeutics, Inc.), Investors’ Rights Agreement (Menlo Therapeutics, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stockSecurities, the Company shall not be required to Register the Registrable Securities of the Investor under this Section 1.3 to include any of 4.2 unless the Holders’ securities Investor’s Registrable Securities are included in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter Investor enters into an underwriting agreement in customary form with the underwriters and setting forth such underwritersterms for the underwriting. In the event the underwriters advise the Investor seeking Registration of Registrable Securities pursuant to this Section 4.2 in writing that, in their reasonable opinion, market factors (including the aggregate number of Registrable Securities requested to be Registered, the general condition of the market, and then only the status of the Persons proposing to sell securities pursuant to the Registration) require a limitation of the number of Securities to be underwritten, the underwriters may exclude some or all Registrable Securities from the Registration and underwriting; provided that the Company shall include the Company’s Securities in such quantity as registration, in the underwriters determine priority listed below: (i) in good faith will not jeopardize the success event the Company initiated such piggyback registration, the Company shall include in such piggyback registration first, the Securities the Company proposes to register and second, the Securities of all other selling security holders, including the offering Registrable Securities requested to be included by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders Investor to be included in such offering exceeds the piggyback registration in an amount of securities sold (other than by the Company) that the underwriters determine in good faith is compatible that, together with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: (i) first, the securities Securities the Company proposes to sell register, shall not exceed the maximum offering size and shall be included; (ii) second, the number of Registrable Securities that are requested to be registered by the allocated among such selling Holders shall be included security holders on a pro rata basis (based on the number of Registrable Securities held the Ordinary Shares or ADSs (as applicable) sought to be Registered by all selling Holders or in such other proportions as shall mutually be agreed to by all each such selling Holderssecurity holder); and (iiiii) thirdin the event any holder of Securities initiated such piggyback registration, the number of securities that are Company shall include in such piggyback registration first, the Securities such initiating security holder proposes to register, second, pro rata among any other Securities requested to be registered pursuant to a contractual right of registration (including Securities requested to be Registered by the Investor pursuant to this Section 4.2) and third, any Securities the Company proposes to register, in an amount that, together with the Securities the initiating security holder and the other stockholders selling security holders propose to register, shall be included pro rata based on not exceed the maximum offering size; provided further that the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders that are included in the offering an underwriting must not be reduced below thirty percent (30%) of the total amount number of securities included in such offering, unless such offering is Registrable Securities requested by the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder Investor to be included in the Registration. If the Investor (or its Affiliate) disapproves of the terms of any underwriting, the Investor (or such offering if any Affiliate) may elect to withdraw therefrom by written notice to the Company and the underwriters delivered at least ten (10) days prior to the effective date of the Registration Statement. Any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded or withdrawn from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons underwriting shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon withdrawn from the aggregate amount of Registrable Securities owned by all such related entities and individualsRegistration.
Appears in 2 contracts
Samples: Investor Rights Agreement (Alibaba Group Holding LTD), Investor Rights Agreement (Ali YK Investment Holding LTD)
Underwriting Requirements. In connection with any underwritten offering involving an underwriting of shares of the Company’s capital stocka Holder's Registrable Securities, the Company shall not be required under this Section 1.3 2.4 to include register any of such Registrable Securities in connection with such underwritten offering unless (i) in the Holders’ securities in such underwriting unless they accept the terms case of the underwriting as agreed upon between a registration pursuant to Section 2.1, the Company consents to the underwriters selected by the Holders participating in the registration (which consent shall not be unreasonably withheld) and (ii) in the case of a registration pursuant to Section 2.2, the Holder accepts the underwriters selected by the Company and then, in either case (i) or by other persons entitled (ii), the Company shall be required to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then register Registrable Securities only in such quantity as the underwriters determine lead managing underwriter determines, in its good faith discretion, will not jeopardize the success of the offering by the Company. If To the total amount extent that the lead managing underwriter will not permit the registration of securitiesall of the Registrable Securities sought to be registered, including in the case of a registration pursuant to Section 2.1 or 2.2, the Registrable Securities, requested by stockholders Securities to be included in such offering exceeds the amount of securities sold (other than by the Company) that the underwriters determine in good faith is compatible with the success of the offering, then the Company shall be required to include in apportioned among the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to be registered by the selling Holders shall be included on a pro rata basis (based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number shares of securities that are requested Class B Common Stock proposed to be registered by other stockholders each), first among the Holders of Registrable Securities to be registered pursuant to Section 2.1, and thereafter among the Holders of Registrable Securities to be registered pursuant to Section 2.2; provided, however, that the right of the underwriters to exclude Registrable Securities from the registration and underwriting as described above shall be included pro rata based on the number of securities restricted such that all shares that are not Registrable Securities and all shares that are held by all such stockholders. Notwithstanding persons who are employees or directors of the foregoing, in no event Company (or any subsidiary of the Company) shall (i) any Registrable Securities first be excluded from such offering unless registration and underwriting before any Registrable Securities are so excluded. Those Registrable Securities and other securities that are excluded from the underwriting by reason of the managing underwriter's marketing limitation and all other securities (other than securities Registrable Securities not originally requested to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders so included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder shall not be included in such offering if any Registrable Securities held registration and shall be withheld from the market by any Holder (and that such Holder has requested the Holders thereof for a period, not to be registered) are excluded from such exceed 90 days, which the managing underwriter reasonably determines necessary to effect the underwritten public offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a No Holder of Registrable Securities shall be entitled to participate in an underwritten offering unless such Holder enters into, and that is a venture capital fundperforms its obligations under, partnership, limited liability company one or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners more underwriting agreements and any trusts for the benefit related agreements and documents (including an escrow agreement and/or a power of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction attorney with respect to the disposition of the Registrable Securities), in the form that such “selling Holder” Holder shall agree to with the lead managing underwriter of the transaction. If any Holder disapproves of the terms of any underwriting, it may elect, prior to the execution of any underwriting agreement, to withdraw there from by written notice to the Company and the lead managing underwriter. Any Registrable Securities so withdrawn from an underwriting by such Holder shall be based upon withdrawn from such registration and shall not be transferred in a public distribution prior to 180 days following the aggregate amount effective date of Registrable Securities owned by all such related entities and individualsthe registration statement relating thereto.
Appears in 2 contracts
Samples: And Registration Rights Agreement (Liberty Media Corp /De/), Option Agreement (Idt Corp)
Underwriting Requirements. (i) In connection with any offering involving an underwriting of shares of the Company’s capital stockequity securities, the Company shall not be required to Register the Registrable Securities of a Holder under this Section 1.3 to include any 3 of this Exhibit unless such Holder’s Registrable Securities are included in the Holders’ securities in underwritten offering and such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter Holder enters into an underwriting agreement in customary form with the underwriter or underwriters of internationally recognized standing selected by the Company and setting forth such terms for the underwritten offering as have been agreed upon between the Company and the underwriters. In the event the underwriters advise Holders seeking Registration of Registrable Securities pursuant to this Section 3 of this Exhibit in writing that market factors (including the aggregate number of Registrable Securities requested to be Registered, the general condition of the market, and then the status of the Persons proposing to sell securities pursuant to the Registration) require a limitation of the number of Registrable Securities to be underwritten, the underwriters may (i) in the event the offering is the Company’s IPO, exclude all of the Registrable Securities (so long as the only securities included in such quantity offering are those sold for the account of the Company and no securities of other selling shareholders are included), or (ii) otherwise exclude the Registrable Securities requested to be Registered, provided that (A) no Registrable Securities shall be excluded unless all other equity securities (except for securities sold for the account of the Company) are excluded from the Registration and underwriting and so long as the underwriters determine in good faith will not jeopardize the success number of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders Securities to be included in such offering exceeds Registration is allocated among all Holders in proportion, as nearly as practicable, to the amount of securities sold (other than by the Company) that the underwriters determine in good faith is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number respective amounts of Registrable Securities that are requested by such Holders to be registered by the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (iiB) the amount of securities of the selling Holders Registrable Securities to be included in the offering such Registration shall not be reduced below thirty twenty five percent (3025%) of the total amount of securities included in such offeringRegistration. To facilitate the allocation of shares in accordance with the above provisions, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if Company or the underwriters make may round the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested number of shares allocated to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, to the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.nearest one hundred (100) shares. EXHIBIT E
Appears in 2 contracts
Samples: Shareholders’ Agreement (Tuya Inc.), Shareholders’ Agreement (Tuya Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities Registrable Securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the Registrable Securities held by the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities, including securities that are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any not Registrable Securities held by any Holder (and that such Holder has requested to be registered) Holder, are excluded from included in such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund (or other investment fund), partnership, limited liability company partnership or corporation, the affiliated venture capital funds (or other investment funds), partners, members, retired partners, retired members partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Hortonworks, Inc.), Rights Agreement (Hortonworks, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section CLAUSE 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the an underwriter or underwriters determine in good faith will not jeopardize the success of the offering selected by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders Holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities except that are requested to no Registrable Securities shall be registered excluded until all common stock held by other stockholders shall be included pro rata based on shareholders, directors, officers and employees of the number of securities held by all such stockholders. Notwithstanding the foregoingCompany have been excluded), but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial OfferingOffering of the Company's securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offeringincluded. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Option Agreement (Anthem Recording West Inc), Registration Rights Agreement (Udate Com Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stockSecurities, the Company shall not be required to Register the Registrable Securities of the Investor under this Section 1.3 to include any of 4.2 unless the Holders’ securities Investor’s Registrable Securities are included in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter Investor enters into an underwriting agreement in customary form with the underwriters and setting forth such underwritersterms for the underwriting. In the event the underwriters advise the Investor seeking Registration of Registrable Securities pursuant to this Section 4.2 in writing that, in their reasonable opinion, market factors (including the aggregate number of Registrable Securities requested to be Registered, the general condition of the market, and then only the status of the Persons proposing to sell securities pursuant to the Registration) require a limitation of the number of Securities to be underwritten, the underwriters may exclude some or all Registrable Securities from the Registration and underwriting; provided that the Company shall include the Company’s Securities in such quantity as registration, in the underwriters determine priority listed below: (i) in good faith will not jeopardize the success event the Company initiated such piggyback registration, the Company shall include in such piggyback registration first, the Securities the Company proposes to register and second, the Securities of all other selling security holders, including the offering Registrable Securities requested to be included by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders Investor to be included in such offering exceeds the piggyback registration in an amount of securities sold (other than by the Company) that the underwriters determine in good faith is compatible that, together with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: (i) first, the securities Securities the Company proposes to sell register, shall not exceed the maximum offering size and shall be includedallocated among such selling security holders on a pro rata basis; and (ii) in the event any holder of Securities initiated such piggyback registration, the Company shall include in such piggyback registration first, the Securities such initiating security holder proposes to register, second, pro rata among any other Securities requested to be registered pursuant to a contractual right of registration (including Securities requested to be Registered by the Investor pursuant to this Section 4.2) and third, any Securities the Company proposes to register, in an amount that, together with the Securities the initiating security holder and the other selling security holders propose to register, shall not exceed the maximum offering size; provided further that the number of the Registrable Securities that are requested to be registered by the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering an underwriting must not be reduced below thirty percent (30%) of the total amount number of securities included in such offering, unless such offering is Registrable Securities requested by the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder Investor to be included in the Registration. If the Investor (or its Affiliate) disapproves of the terms of any underwriting, the Investor (or such offering if any Affiliate) may elect to withdraw therefrom by written notice to the Company and the underwriters delivered at least ten (10) days prior to the effective date of the Registration Statement. Any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded or withdrawn from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons underwriting shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon withdrawn from the aggregate amount of Registrable Securities owned by all such related entities and individualsRegistration.
Appears in 2 contracts
Samples: Investor Rights Agreement (Weichai America Corp.), Investor Rights Agreement (Power Solutions International, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities Registrable Securities or Other Shares in such underwriting unless they the holders thereof accept the usual and customary terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company Holders (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersreasonably agreed to by the Company, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, Securities and Other Shares requested by stockholders to be included in such offering exceeds the amount of securities sold (to be sold, other than by the Company) , that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in , the following order of prioritysecurities so included to be apportioned as follows: (i) first, the securities of the Company proposes to sell held by officers and directors of the Company (including Registrable Shares) and by holders of Other Shares shall be included; excluded from such registration and underwriting to the extent deemed advisable by the managing underwriter, and (ii) secondif a further limitation on the number of shares is required after all securities held by officers and directors of the Company and all Other Shares have been excluded, the number of Registrable Securities shares that are requested to may be registered by the selling Holders included in such registration and underwriting shall be included pro rata based on allocated among all Holders requesting registration in proportion, as nearly as practicable, to the respective number of Registrable Securities held owned by all selling Holders or each such Holder; provided that, except in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number case of securities that are requested to be registered by other stockholders shall be included pro rata based on the number initial public offering of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders when all Registrable Shares may be excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included in such offeringincluded, or (iii) any securities held by a Common Holder the number of Registrable Shares permitted to be included therein shall in such offering if any event be at least 33% of the total amount of securities included therein and shall be allocated among the Holders pro rata based on the number of Registrable Securities held by any Holder (and that each such Holder has requested to be registered) are excluded from included in such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors' Rights Agreement (M Wise Inc), Investors' Rights Agreement (M Wise Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, offering or (iiiii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder other than a Common Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital or other investment fund, partnership, limited liability company partnership or corporation, the affiliated Affiliates of such venture capital or other investment funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Amplitude, Inc.), Investors’ Rights Agreement (Amplitude, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, offering or (iiiii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Rubrik, Inc.), Investors’ Rights Agreement (Rubrik, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 1.2 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as reasonably agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities and Other Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: In no event shall (i) first, the any Registrable Securities and Other Registrable Securities be excluded from such offering unless all other stockholders’ securities the Company proposes to sell shall be included; (other than Registrable Securities and Other Registrable Securities) have been first excluded or (ii) secondthe amount of Registrable Securities and Other Registrable Securities included in the offering be reduced below twenty percent (20%) of the total amount of securities included in such offering. In the event that less than all of the Registrable Securities and Other Registrable Securities requested to be registered can be included in such offering, then the number of Registrable Securities included in the offering shall equal the total number of Registrable Securities and Other Registrable Securities included in the offering, as determined pursuant to the immediately preceding paragraph, multiplied by a fraction (i) the numerator of which is the number of Registrable Securities then held by all Holders that are requested request to include Registrable Securities in the offering and (ii) the denominator of which is the sum of the number of Registrable Securities then held by all Holders that request to include Registrable Securities in the offering and the number of Other Registrable Securities then held by all holders of Other Registrable Securities that request to include Other Registrable Securities in the offering. The number of Registrable Securities included in the offering pursuant to the immediately preceding sentence shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnershipprivate equity fund, limited liability company partnership or corporation, the affiliated venture capital funds, partnersprivate equity funds, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Francisco Partners II LP), Investors’ Rights Agreement (Blue Coat Systems Inc)
Underwriting Requirements. In connection with any underwritten offering involving an underwriting initiated by the Company or any stockholder other than a Holder of shares of the Company’s capital stockRegistrable Securities, the Company shall not be required under this Section 1.3 3 to include any of the Holders’ Holder's securities in such underwriting unless they accept such Holder accepts the terms of the underwriting as agreed upon between the Company or such stockholder and the underwriters selected by the Company (or by other persons entitled such stockholder; PROVIDED, HOWEVER, that no Holder participating in such underwriting shall be required to select the underwriters) make any representations, warranties or indemnities except as they relate to such Holder's ownership of shares and authority to enter into an the underwriting agreement in customary form with and to such underwritersHolder's intended method of distribution, and the liability of such Holder (whether by indemnification, contribution or otherwise) shall be limited to an amount equal to the net proceeds from the offering received by such Holder. If a Holder complies with the requirements set forth in this Section 8, then only such Holder shall have the right to be included in such quantity as the underwriters determine in good faith will not jeopardize the success of the any underwritten offering by the Company, whether initiated by the Company or any stockholder, subject to the terms of Section 3 and to the limitations set forth below in this Section 8. If the total amount number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount largest number of securities sold (other than by the Company) that the underwriters determine in good faith is compatible with the success of the reasonably believe can be sold without having an adverse effect on such offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith believe will not jeopardize the success of the have an adverse effect on such offering. The Company will include securities included in such registration in the following order of priorityoffering shall be allocated as follows: (i) first, the securities that the Company proposes or any stockholders initiating the offering propose to sell shall be included; sell, (ii) second, the number of Registrable Securities that are requested if any, other securities required to be registered pursuant to agreements entered into prior to the date of this Agreement which by their terms state that the selling Holders shall be included pro rata based on signatories thereof have priority in the number event of Registrable Securities held by such cutbacks over all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and beneficiaries under subsequent registration rights agreements, (iii) third, among all Holders of Registrable Securities that have elected to participate in such underwritten offering, and other holders of Common Stock who are signatories to agreements entered into prior to the number date of securities this Agreement which, by their terms, give such other holders priority equal to that are requested to be registered by other stockholders shall be included pro rata based on of the number of securities held by all such stockholders. Notwithstanding the foregoingHolders, in no event shall proportion (ias nearly as practicable) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fundCommon Stock, partnershiprespectively, limited liability company or corporation, owned by such holders until such holders have included in the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of underwriting all shares requested by such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed holders to be a single “selling Holder,” included, and (iv) thereafter among any pro rata reduction other holders of Common Stock who have exercised their piggyback registration rights, if permitted hereunder, with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individualsregistration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Capital Environmental Resource Inc), Form of Registration Rights Agreement (Capital Environmental Resource Inc)
Underwriting Requirements. In connection with any offering ------------------------- involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters), and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company; provided, however, that the Company will use its reasonable best efforts to negotiate the terms of such underwriting agreement to provide that no Holder (other than a Founder) shall be required to make any customary representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, its ownership of and title to the Registrable Securities, and its intended method of distribution, and any liability of any Holder (other than a Founder) to any underwriter or other person under such underwriting agreement shall be limited to an amount equal to the net proceeds that it derives from such registration. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall stockholders according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders stockholder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iiistockholders) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless (ii) notwithstanding (i) above, any shares being sold by a stockholder exercising a demand registration right similar to that granted in Section 1.2 be excluded from such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder the Founders or any person who is not selling Registrable Securities be included in such offering if any Registrable Securities securities held by any selling Holder (and that such Holder has requested to be registered) are excluded from such offeringexcluded. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that which is a venture capital fund, partnership, corporation or limited liability company or corporationcompany, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members, retired members and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such "selling stockholder," as defined in this sentence.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mpath Interactive Inc/Ca), Agreement and Plan of Merger (Mpath Interactive Inc/Ca)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, offering or (iiiii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Avinger Inc), Investors’ Rights Agreement (Avinger Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriter or underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the CompanyCompany subject to the terms of this Section 1.3(c). If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders Holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third), the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (30%) of the total amount of securities included in such offering, unless such offering is a “Qualified IPO” (as such term is defined in the Initial OfferingCompany’s then current Amended and Restated Certificate of Incorporation, as amended (the “Restated Certificate”)), in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included, (ii) securities held by any Common Holder be included in such offeringif any securities by any other selling Holder are excluded, or (iii) any securities held by a Common Holder the number of shares of Registrable Securities to be included in such offering if any Registrable Securities held by any Holder underwriting be reduced unless all other securities (and that such Holder has requested to be registeredother than those of the Company) are first entirely excluded from such offeringthe underwriting. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and partners, retired partners partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Control4 Corp), Investors’ Rights Agreement (Control4 Corp)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of being issued by the Company’s capital stock, the Company shall not be required under this Section 1.3 3.2 to include any of the Holders’ securities Registrable Securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with provided that such underwritersunderwriters shall be of internationally recognized reputation), and then only in such quantity as will not, in the underwriters determine in good faith will not opinion of the underwriters, jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders Shareholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith is reasonably believe compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable SecuritiesSecurities requested by Shareholders to be included in such offering, that which the underwriters determine in good faith believe will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall Shareholders according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders Shareholder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iiiShareholders) third, if so justified together with the exclusion of other Equity Securities from the underwriting in proportion to the number of securities Registrable Securities and other Equity Securities that are requested to be registered by other stockholders shall may be included pro rata based on in the number of securities held by all such stockholders. Notwithstanding the foregoing, underwriting; but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders Shareholders may be excluded entirely if the underwriters make the determination described above and no other stockholderShareholder’s securities are included in such offering, or (iiiii) notwithstanding (i) above, any securities held shares being sold by a Common Holder Shareholder exercising a demand registration right similar to that granted in Section 3.1 be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Shareholders Agreement, Shareholders Agreement (Newsummit Biopharma Holdings LTD)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the an Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital an investment fund, partnership, limited partnership, limited liability company or corporation, the affiliated venture capital investment funds, partners, memberslimited partners, retired partners, members and retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners partners, members and retired members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Sumo Logic, Inc.), Investors’ Rights Agreement (Sumo Logic, Inc.)
Underwriting Requirements. In connection with any offering ------------------------- involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters), and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall stockholders according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders stockholder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iiistockholders) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities shares being sold by a stockholder exercising a demand registration right similar to that granted in Section 1.2 be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excludedoffering, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case case, except as provided in (i), the selling Holders stockholders may be excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included in such offeringincluded, or (iii) any securities held by a Common Holder Founder be included in such offering if any Registrable Securities securities held by any selling Holder (and that such Holder has requested to be registered) are excluded from such offeringexcluded. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holderholder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such "selling stockholder," as defined in this sentence.
Appears in 2 contracts
Samples: Rights Agreement (Valicert Inc), Rights Agreement (Valicert Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stockshares, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole reasonable discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders shareholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole reasonable discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other shareholders’ securities are first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Qualified Public Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholdershareholder’s securities are included in such offering, offering or (iiiii) any securities held by a Common Holder an Ordinary Shareholder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, members, retired members and stockholders shareholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Gushan Environmental Energy LTD), Agreement (Gushan Environmental Energy LTD)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters), and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders holders of capital stock to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall security holders according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders security holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iiisecurity holders) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (iia) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) 20% of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case case, the selling Holders security holders may be excluded if the underwriters make the determination described above and no other stockholdersecurity holder’s securities are included or (b) any Other Registrable Securities be included until Holders of Series G Registrable Securities, Series F Registrable Securities, Series E Registrable Securities, Series D Registrable Securities and Series C Registrable Securities that have requested to include Registrable Securities therein shall have received (or will receive in such offeringregistration) an amount equal to the original purchase price of their shares of Series G Preferred Stock, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (Series F Preferred Stock, Series E Preferred Stock, Series D Preferred Stock and that such Holder has requested to be registered) are excluded from such offeringSeries C Preferred Stock, respectively. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that security holder which is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders holders of capital stock of such Holderholder, or the estates and family members of any such partners and retired partners partners, any Affiliated Fund, and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holdersecurity holder,” and any pro pro-rata reduction with respect to such “selling Holdersecurity holder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such “selling security holder,” as defined in this sentence.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (MINDBODY, Inc.), Investors’ Rights Agreement (MINDBODY, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities to be sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial OfferingOffering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, offering or (iiiii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder that is not a Common Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired members, partners, retired members partners and stockholders of such Holder, or the estates and family members of any such members, retired members, partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals. For this purpose, the X. Xxxx Price Investors shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all entities and individuals included in such “selling Holder,” as defined in this sentence. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter, delivered at least ten (10) business days prior to the effective date of the registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Coupa Software Inc), Investors’ Rights Agreement (Coupa Software Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the The Company shall not be required under this Section 1.3 Sections 3 or 12 to include any of the Holders’ ' securities in an underwritten offering of the Company's securities unless such underwriting unless they Holders accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company, assuming usual and customary underwriting terms. Notwithstanding any other provisions of this Agreement, in the case of an underwritten offering in which Registrable Securities are to be included pursuant to Section 3, if the managing underwriter shall advise the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith will not jeopardize the success of the offering by the Company. If writing that the total amount number of securities, including Registrable Securities, requested by stockholders shareholders to be included in such offering exceeds the amount of securities sold (securities, other than securities to be sold by the Company) , that the underwriters determine in good faith is compatible with the success of the offeringmarketing factors allow, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith will not jeopardize managing underwriter believes marketing factors allow (the success of the offering. The Company will include in such registration in the following order of prioritysecurities so included to be reduced as follows: (i) first, all securities which are not Registrable Securities, securities covered by the Securities Purchase Agreement with Laurus Master Fund, LTD (the "Laurus Purchase Agreement") or securities covered by the Company proposes to sell Registration Rights Agreement dated August 15, 1997 (the "Registration Agreement") shall be included; excluded from the offering to the extent limitation on the number of shares included in the underwriting is required and (ii) if further limitation on the number of shares to be included in the underwriting is required then second, the number of Registrable Securities shares that are may be included in the underwriting held by selling Holders, parties to the Laurus Purchase Agreement and parties to the Registration Agreement who propose to participate in the registration shall be reduced pro rata based on the total number of securities having registration rights under this Agreement, the Laurus Purchase Agreement or the Registration Agreement by such persons; provided that, in no event shall the number of securities requested to be registered by parties to the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering Registration Agreement be reduced below thirty percent (30%) 20% of the total amount of securities included aggregate shares to be offered in such offering, the registration unless such offering is parties request that securities constituting less than 20% of the Initial Offeringaggregate shares to be offered in the registration be registered, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s event, all such securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individualsincluded.
Appears in 2 contracts
Samples: Registration Rights Agreement (Briazz Inc), Registration Rights Agreement (Briazz Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities, including the Registrable Securities held by the Key Holders, have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty thirty-three percent (3033%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members, and retired partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Lemonade, Inc.), Investors’ Rights Agreement (Lemonade, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters), and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. The Company shall use its best efforts to cause the managing underwriter or underwriters of a proposed underwritten offering to permit all Registrable Securities requested to be included in the registration for such offering to include all such Registrable Securities in such offering on the same terms and conditions as any other securities included therein. If the total amount of securities, including Registrable Securities, requested by stockholders shareholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders Holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company's securities in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included in such offering, or (iiiii) notwithstanding (i) above, any securities held shares being sold by a Common Holder shareholder exercising a demand registration right similar to that granted in Section 1.2 or 1.3 be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that Holder which is a Holder of Registrable Securities and that which is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” ", and any pro pro-rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such "selling Holder," as defined in this sentence.
Appears in 2 contracts
Samples: Investment Agreement (PDT Inc /De/), Preferred Stock Registration Rights Agreement (PDT Inc /De/)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stockUnderwritten Offering, the Company shall not be required under this Section 1.3 1.4 to include any of the Holders’ securities in such underwriting underwriting, unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters), and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders Stockholders to be included in such offering exceeds the an amount of securities sold (other than by the Company) that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In such event: (x) in cases initially involving the registration for sale of securities for the Company’s own account, securities shall be registered in such registration offering in the following order of priority: (i) first, the securities which the Company proposes to sell shall be included; register, (ii) second, the number of Registrable Securities that are requested to be registered by the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; Warrant Shares, and (iii) third, the number of Registrable Securities and securities that are which have been requested to be registered included in such registration by other stockholders shall be included persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Company (pro rata based on the number amount of securities held sought to be registered by all Holders and such stockholders. Notwithstanding other persons); and (y) in cases not initially involving the foregoingregistration for sale of securities for the Company’s own account, securities shall be registered in no event shall such offering in the following order of priority: (i) first, the securities of any Registrable Securities be excluded from such offering unless all other securities (other than securities person whose exercise of a “demand” registration right pursuant to be sold by a contractual commitment of the Company) have been first excludedCompany is the basis for the registration, (ii) second, the Warrant Shares, (iii) third, Registrable Securities and securities which have been requested to be included in such registration by persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Company (pro rata based on the amount of securities of sought to be registered by Holders and such other persons), and (iv) fourth, the selling Holders included securities which the Company proposes to register. No Holder may participate in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, any Underwritten Offering hereunder unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholderHolder (a) agrees to sell such Holder’s securities are included on the basis provided in any underwriting arrangements approved by the person or persons entitled hereunder to approve such offeringarrangements and (b) completes and executes all questionnaires, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (powers of attorney, indemnities, underwriting arrangements and that such Holder has requested to be registered) are excluded from such offering. For purposes of other documents reasonably required under the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders terms of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individualsunderwriting arrangements.
Appears in 2 contracts
Samples: Registration Rights Agreement (Patrick Industries Inc), Registration Rights Agreement (Tontine Capital Partners L P)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities Registrable Securities in such underwriting unless they the Holders accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such its underwriters, and then only in such quantity as the underwriters in their sole discretion determine in good faith will not jeopardize the success of the offering by the Company. If the total amount number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine in good faith is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters and the Company in their sole discretion determine in good faith will not jeopardize the success of the offering. The Company will include If the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration offering, then the Registrable Securities that are included in the following order of priority: (i) first, the securities the Company proposes to sell such offering shall be included; allocated among the selling Holders in proportion (iias nearly as practicable) second, to the number of Registrable Securities that are requested to be registered owned by the each selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders Holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any the number of Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold held by the Company) have been first excluded, (ii) the amount of securities of the selling Holders Investors included in the offering be reduced below thirty percent unless all other securities (30%including Registrable Securities held by Other Stockholders) are first entirely excluded from the offering, and (ii), subject to the immediately preceding clause (i), the number of the total amount of securities Registrable Securities held by Other Stockholders included in such offeringthe offering be reduced unless all other securities (excluding, unless such offering is for the Initial Offeringavoidance of doubt, in which case the selling Holders may be excluded if Registrable Securities held by the underwriters make the determination described above Investors and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registeredthe Company) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed first entirely reduced to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individualszero.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (REVA Medical, Inc.), Investors’ Rights Agreement (REVA Medical, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 2.3 to include any of the Preferred Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting ), provided that such agreement in customary form with such underwriters, and then only in such quantity as does not require indemnification by any of them except to the underwriters determine in good faith will not jeopardize the success of the offering extent contemplated by the CompanySection 2.10 hereof. If the total amount of securities, including Registrable Securities, requested by stockholders the Preferred Holders to be included in such offering exceeds the amount of securities sold (other than by the Company) that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: (i) first, the securities the Company proposes to sell shall be includedfor its own account; (ii) second, to the extent that the number of securities the Company proposes to sell is less than the number of securities which the Company has been advised can be sold in such offering, such number of Registrable Securities that are which the Preferred Holders have requested to be registered included in such registration pursuant to Section 2.3 hereof; provided, however, in no event will shares of any other selling stockholder be included in such registration which would reduce the number of shares which have been requested to be included by the selling Preferred Holders (or completely exclude the shares held by Preferred Holders) without the written consent of a majority of the then outstanding Registrable Securities proposed to be sold in the offering; and (iii) third, to the extent that the number of securities which are to be included in such registration pursuant to clauses (i) and (ii) is, in the aggregate, less than the number of securities which the Company has been advised can be sold in such offering, such number of other securities requested to be included in the offering for the account of any holders not contractually entitled to registration which, in the opinion of the underwriters, is compatible with the success of the offering. The number of Registrable Securities included in such registration statement shall be included allocated pro rata among the holders of Registrable Securities based on the number of Registrable Securities held by all selling Holders each of them or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) thirdthem, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be shares being sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included such a holder exercising a demand registration right similar to that granted in the offering Section 2.2 or 2.4 be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holderholder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” stockholder" and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such "selling stockholder," as defined in this sentence. In no event shall the amount of Registrable Securities the Preferred Holders request to be included in the registration pursuant to Section 2.3 be reduced below twenty-five (25%) of the total amount of securities included in such registration, unless such offering is the initial public offering of the Company's Common Stock under the Securities Act, in which event any or all of the Registrable Securities of the Preferred Holders may be excluded in accordance with this Section 2.8.
Appears in 2 contracts
Samples: Rights Agreement (Metabasis Therapeutics Inc), Investors' Rights Agreement (Metabasis Therapeutics Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.2 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other stockholders’ securities (other than securities to be sold by the Company) have been first excludedexcluded from the offering, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters underwriters, as applicable, make the determination described above and no other stockholder’s securities are included in such offering, offering or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder other than a Common Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Zymergen Inc.), Investors’ Rights Agreement (Zymergen Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (NephroGenex, Inc.), Investors’ Rights Agreement (Care Capital III LLC)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Alder Biopharmaceuticals Inc), Investors’ Rights Agreement (Alder Biopharmaceuticals Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stockstock pursuant to Section 2.2, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such its underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities to be sold (other than by the Company) Company that the underwriters determine in good faith their reasonable discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters and the Company determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities held by Investors, Maven or the Founder be excluded from such offering unless all other stockholders’ securities have been first excluded. Further, in such registration no event shall any Registrable Securities held by Investors or Maven be excluded unless all Registrable Securities held by the Founder, if any, have been excluded. In the event that the underwriters determine that, following the cutbacks described in the following order preceding two sentences, less than all of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to be registered by Investors and Maven can be included in such offering, then the Registrable Securities held by Investors and Maven that are included in such offering shall be apportioned pro rata among the selling Holders shall be included pro rata Investors and Maven (if Maven has elected to sell) based on the number of Registrable Securities held by all selling Holders Investors and Maven (if Maven has elected to sell) or in such other proportions as shall mutually be agreed to by all such selling Holders; Investors and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholdersMaven. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders Investors included in the offering be reduced below thirty thirty-three percent (3033%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, Qualified Public Offering in which case the selling Holders Investors may be excluded beyond this amount if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionmentapportionment pursuant to this Section 2.7, for any selling stockholder that which is a Holder of Registrable Securities and that which is a venture capital an investment fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members members, stockholders and stockholders Affiliates of such Holder, or the estates and family members of any such partners partners, retired partners, members and retired partners members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” ”, and any pro pro-rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such “selling Holder,” as defined in this sentence.
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Brightcove Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersan underwriter or underwriters selected by the Company, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders shareholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders Holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and provided, that in any case at least two-thirds (iii2/3) third, of the number of Holders' securities that so included are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoingHolders other than Common Holders), but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included in such offeringincluded, or (iiiii) notwithstanding (i) above, any securities held shares being sold by a Common Holder shareholder exercising a demand registration right similar to that granted in Section 1.2 be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Rights Agreement (Adexa Inc), Rights Agreement (Adexa Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.2 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other stockholders’ securities (other than securities to be sold by the Company) have been first excludedexcluded from the offering, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, offering or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder other than a Common Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Singular Genomics Systems, Inc.), Investors’ Rights Agreement (Atara Biotherapeutics, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters), and then then, subject to the limitations set forth in this Section 2.8, only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall stockholders according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders stockholder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iiistockholders) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) 25% of the total amount of securities included in such offering, unless such offering is the Initial Offeringa Qualified IPO, in which case case, the selling Holders stockholders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iiiii) any securities held by a Founder or Common Holder be included in such offering if any Registrable Securities securities held by any other selling Holder (and are excluded. In no event will shares of any other selling stockholder be included in such registration that such Holder has requested would reduce the number of shares which may be included by Holders without the written consent of each of the Holders of not less than a majority of the Registrable Securities proposed to be registered) are excluded from such sold in the offering. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holderholder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holderstockholder,” and any pro pro-rata reduction with respect to such “selling Holderstockholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such “selling stockholder,” as defined in this sentence.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (NanoString Technologies Inc), Investors’ Rights Agreement (NanoString Technologies Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 1.2 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, offering or (iiiii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Iradimed Corp), Investors’ Rights Agreement (Iradimed Corp)
Underwriting Requirements. In connection with any offering ------------------------- involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters), and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable SecuritiesSecurities and shares of Common Stock of the Company with registration rights (if any), requested by stockholders shareholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall shareholders according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders shareholder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iiishareholders) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of the Company's securities in which case the selling Holders shareholders may be excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included in such offering, or (iiiii) notwithstanding (i) above, any securities held shares being sold by a Common Holder shareholder exercising a demand registration right similar to that granted in Section 1.2 be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence preceding provision concerning apportionment, for any selling stockholder that shareholder which is a Holder holder of Registrable Securities and that which is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders shareholders of such Holderholder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holdershareholder,” " and any pro pro-rata reduction with ------------------- respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such "selling shareholder," as defined in this sentence. With further regard to allocation, if any Holder or other selling shareholder does not request inclusion of the maximum number of shares of Registrable Securities and other shares of Common Stock with registration rights allocated to him pursuant to the above-described procedure, the remaining portion of his allocation shall be reallocated among those requesting Holders and other selling shareholders whose allocation did not satisfy their requests pro rata on the basis of the number of shares of Registrable Securities and other shares of Common Stock with registration rights which would be held by such Holders and other selling shareholders, assuming conversion, and this procedure shall be repeated until all of the shares of Registrable Securities and other shares of Common Stock with registration rights which may be included in the registration on behalf of the Holders and other selling shareholders have been so allocated.
Appears in 2 contracts
Samples: Rights Agreement (Replaytv Inc), Rights Agreement (Replaytv Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders shareholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other shareholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered after the expiration of Restricted Period can be included in such registration offering, then the Registrable Securities that are included in the following order of priority: such offering shall be allocated (i) first, to Holders of Registrable Securities who hold (or held) Notes or Series C Preferred Stock, pro rata according to the securities the Company proposes to sell shall be includednumber of Registrable Securities held by each such Holder; and (ii) second, to the number remaining Holders of Registrable Securities that are requested to be registered by the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by Holders. In the event that the underwriters determine that less than all such selling Holders; and (iii) third, of the number of securities that are Registrable Securities requested to be registered by other stockholders before the expiration of the Restricted Period can be included in such offering, then the Registrable Securities that are included in such offering shall be included allocated (i) first, to Holders of Registrable Securities who hold (or held) Series C Preferred Stock, pro rata based on according to the number of securities Registrable Securities held by each such Holder, up to the Series C Threshold Amount; and (ii) second, after the Senior Management Employees and Director Employees have each registered up to their Threshold Senior Management Registrable Securities, to all Holders of Registrable Securities, pro rata according to the number of Registrable Securities held by each such Holder of Registrable Securities held by all such stockholdersHolders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Company’s first firm commitment underwritten public offering of its Common Stock under the Act (the “Initial Offering”), in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholdershareholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence and for purposes of Section 1.2(b) concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Orion Energy Systems, Inc.), Note Purchase Agreement (Orion Energy Systems, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, ; that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) % of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, offering or (iiiii) any securities held by a Common person that is not a Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Rights Agreement, Investors Rights Agreement (Versartis, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of being issued by the Company’s capital stock, the Company shall not be required under this Section 1.3 5.3 to include any of the Holders’ securities ' Registrable Securities in such underwriting or the registration statement relating thereto unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by Holders and other stockholders to be included in such offering exceeds the amount of securities sold (offered other than by the Company) Company that the underwriters determine in good faith is compatible with reasonably believe can be offered without jeopardizing the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith believe will not jeopardize the success of the offering. The Company will include in such registration To achieve any necessary reduction in the following order of priority: (i) firstsecurities to be sold, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to be registered by excluded from the selling Holders offering shall first be selected (in each case, pro rata among such class of holders according to the total amount of securities proposed to be included pro rata based on in the number of Registrable Securities held by all selling Holders registration statement or in such other proportions as shall mutually be agreed to by all such selling Holdersclass of holders) in the following order (subject to any contrary provisions in registration rights agreements executed by the Company prior to the date hereof): (i) first, securities being included on behalf of holders other than members of the Xxxx Group shall be excluded, except for securities of holders referred to in clause (iii) below; (ii) next, if additional securities must be excluded, Registrable Securities included pursuant to Section 5.3 shall be excluded; (iii) thereafter, if additional securities must be excluded, securities included on behalf of a holder exercising demand registration rights similar to those set forth in Section 5.2 shall be excluded; and (iiiiv) thirdfinally, if additional securities must be excluded, securities offered by the number of securities that are requested to be registered by other stockholders Company shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Standstill Agreement (Chart House Investors LLC), Standstill Agreement (Chart House Enterprises Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stockstock pursuant to Section 2.2, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such its underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount number of securities, including Registrable Securities, requested by stockholders shareholders to be included in such offering exceeds the amount of securities to be sold (other than by the Company) Company that the underwriters determine in good faith their reasonable discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters and the Company determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other shareholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty thirty-three percent (3033%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, Company’s IPO in which case the selling Holders may be excluded beyond this amount if the underwriters make the determination described above and no other stockholdershareholder’s securities are included in such offering, offering or (iiiii) any securities held by a Common Holder be included in such offering if notwithstanding (i) above, any Registrable Securities held by any Holder (and that described in Section 1.15(i)-(ii) be excluded from such Holder has requested to be registeredunderwriting unless all Registrable Securities described in Section 1.15(iii) are first excluded from such offering. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that shareholder which is a Holder of Registrable Securities and that which is a venture capital an investment fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members members, shareholders and stockholders Affiliates of such Holder, or the estates and family members of any such partners partners, retired partners, members and retired partners members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” ”, and any pro pro-rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such “selling Holder,” as defined in this sentence.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (ADESTO TECHNOLOGIES Corp), Investors’ Rights Agreement (ADESTO TECHNOLOGIES Corp)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 1.4 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in If the following order of priority: (i) first, Holders are so limited by the securities the Company proposes to sell shall be included; (ii) secondunderwriters’ determination, the number of shares that may be included in the underwriting shall be allocated, first, to the Company; second, to the Holders on a pro rata basis based on the total number of Registrable Securities held by the Holders; and third, to any stockholder of the Company (other than a Holder) on a pro rata basis. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities Registrable Securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in included. If any Holder disapproves of the terms of any such offeringunderwriting, or such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter, delivered at least ten (iii10) any securities held by a Common Holder be included in such offering if any business days prior to the effective date of the registration statement. Any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded or withdrawn from such offeringunderwriting shall be excluded and withdrawn from the registration. For purposes of the above sentence preceding sentences concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company company, or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Inogen Inc), Investors’ Rights Agreement (Inogen Inc)
Underwriting Requirements. In connection with any underwritten public offering involving an underwriting of shares of the Company’s share capital stockunder this Section 3, the Company shall not be required under this Section 1.3 3 to include any of the Holders’ securities in such underwriting offering unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersan underwriter or underwriters selected by the Company, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the CompanyCompany based on marketing factors. If the total amount of securities, including Registrable Securities, requested by stockholders shareholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offeringallowed based on marketing factors, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The offering and the Company will shall include in such registration in the following order of priority: registration, (i) first, the securities shares which the Company proposes may wish to sell shall be included; register for its own account, (ii) second, the number of Registrable Securities that are requested to be registered included therein by the selling Holders shall (the securities so included to be included allocated between the Holders on a pro rata basis based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; ) and (iii) third, the number of other securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all in such stockholdersregistration. Notwithstanding the foregoing, in no event shall (i) any the number of Registrable Securities included in the offering be excluded from such offering reduced unless all other securities (other than securities to be sold by the Company) have been are first excluded, (ii) entirely excluded from the amount of securities offering. If any Holder disapproves of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members terms of any such partners underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and retired partners and any trusts for the benefit of any underwriter, delivered at least twenty (20) days prior to the effective date of the foregoing persons registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be deemed to be a single “selling Holder,” excluded and any pro rata reduction with respect to such “selling Holder” shall be based upon withdrawn from the aggregate amount of Registrable Securities owned by all such related entities and individualsregistration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Macrocure Ltd.), Registration Rights Agreement (Macrocure Ltd.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders shareholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other shareholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholdershareholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (Okta, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (Veeva Systems Inc)
Underwriting Requirements. If the registration statement of which the Company gives notice under this Section 1.3 is for an underwritten offering, the Company shall so advise the Holders of Registrable Securities. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their reasonable discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters and the Company determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by allocated pro rata among the selling Holders shall be included pro rata based on in proportion (as nearly as practicable) to the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Astera Labs, Inc.), Investors’ Rights Agreement (Astera Labs, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded and in such registration in the following order of priority: (i) first, the securities the Company proposes to sell no event shall be included; (ii) second, the number of any Registrable Securities that are Common Stock issued or issuable upon conversion of Voting Preferred Stock be excluded from such offering unless any Registrable Securities that are Investor Common Stock have first been excluded from such offering. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered by can be included in such offering, then the Registrable Securities that are included in such offering shall be apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members, former members and stockholders of such Holder, or the estates and family members of any such partners and partners, retired partners partners, members, former members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Rights Agreement (Shotspotter, Inc), Rights Agreement (Shotspotter, Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.2 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other stockholders’ securities (other than securities to be sold by the Company) have been first excludedexcluded from the offering, and (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (RAPT Therapeutics, Inc.), Investors’ Rights Agreement (RAPT Therapeutics, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities Registrable Securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters), and then only in such quantity as the underwriters determine determine, in good faith their sole discretion, will not jeopardize the success of the offering by the Company. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. If the total amount of securities, including Registrable Securities, Securities requested by stockholders to be included in such offering offering, exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall be included pro rata based on stockholders according to the number total amount of Registrable Securities held by all each such selling Holders stockholder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) thirdstockholders), the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities the amount of securities of the selling Holders included in the offering be excluded from such offering reduced unless the securities of all other securities (other than securities to be sold by selling stockholders included in the Company) have been offering are first excludedreduced, (ii) the amount of securities of the selling Holders who are Investors included in the offering be reduced unless the securities of all the selling Holders who are Common Holders included in the offering are first reduced, (iii) the amount of securities of the selling Holders who are Investors included in the offering be reduced unless the securities of the Common Holders are first reduced, or (iv) the amount of securities of the selling Holders who are Investors included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling such Holders may be excluded entirely if the underwriters make the determination described above and no if the securities of all other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) selling stockholders are excluded from such offeringentirely. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that which is a Holder of Registrable Securities and that which is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, partners (or retired partners), members (or retired members members) and stockholders of such Holderselling stockholder, or the estates and family members of any such partners and (retired partners partners), members (or retired members) or stockholders and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,stockholder” and any pro rata reduction with respect to such “selling Holderstockholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such “selling stockholder” as defined in this sentence.
Appears in 2 contracts
Samples: Rights Agreement (Capnia, Inc.), Investors’ Rights Agreement (Capnia, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities, other than securities included pursuant to that certain employment letter agreement between the Company will include and Xxxxx Xxxx, dated as of November 26, 2012 (the “Letter Agreement”), have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested included in such offering shall be apportioned to be registered by Xxxxx Xxxx pursuant to the terms of the Letter Agreement, and then pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (FireEye, Inc.), Investors’ Rights Agreement (FireEye Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersan underwriter or underwriters selected by the Company, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders Holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third), the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial OfferingOffering of the Company’s securities, in which case the selling Holders may be completely excluded if the underwriters make the determination described above and no other stockholder’s securities are included included, or (ii) notwithstanding (i) above, any shares being sold by a stockholder exercising a demand registration right similar to that granted in Section 1.2 are excluded from such offering, or (iii) any securities held by a Common Holder the number of shares of Registrable Securities to be included in such offering if any Registrable Securities held by any Holder underwriting be reduced unless all other securities (and that such Holder has requested to be registeredother than those of the Company) are first entirely excluded from such offeringthe underwriting. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and partners, retired partners partners, members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Agreement (HouseValues, Inc.), Agreement (HouseValues, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any shares of Common Stock issuable or issued upon conversion of the Preferred Stock be excluded from such offering unless all other stockholders’ securities are first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iiiii) any securities held by a Common Holder or a Lender be included in such offering if any Registrable Securities held by any Holder Investor (and that such Holder Investor has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated Affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Synacor, Inc.), Investors’ Rights Agreement (Synacor, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, members, retired members and stockholders of such Holder, or the estates and family members of any such partners partners, retired partners, members and retired partners members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 2 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (Natera, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s PMC's capital stock, the Company PMC shall not be required under this Section 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company PMC and the underwriters selected by it (unless the Company (or by other persons entitled terms of such underwriting purport to select alter the underwriterspriority status of the registration rights of the Holders of Registrable Securities) and enter into an underwriting agreement in customary form with such underwritersan underwriter or underwriters selected by PMC, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the CompanyPMC. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) PMC that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company PMC shall be required to (i) exclude all shares of capital stock other than Registrable Securities and other than shares to be sold by PMC for its own account, and (ii) include in the offering only that number of such securities, including Registrable Securities, Securities that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders Holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third), the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of PMC's securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included in such offeringincluded, or (iiiii) notwithstanding (i) above, any securities held shares being sold by a Common Holder stockholder exercising a demand registration right pursuant to Section 1.2 be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals. Notwithstanding the foregoing, in no event will any Registrable Securities be excluded from an offering unless all other shares of capital stock of any kind, other than those to be sold by PMC for its own account, are first excluded; it being understood and agreed that the Holders of Registrable Securities have first priority registration rights.
Appears in 1 contract
Samples: Investors' Rights Agreement (Murdock Communications Corp)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.2 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other stockholders’ securities (other than securities to be sold by the Company) have been first excluded, excluded from the offering or (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals..
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 1 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters), and then only in such quantity as the underwriters determine in good faith their sole discretion will not not, jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders shareholders to be included in such offering exceeds the amount of securities sold (other than by the Company) that the underwriters determine in good faith is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities shares that are requested to may be registered by included in the selling Holders underwriting shall be included allocated, first, to the Company; second, to the Holders on a pro rata basis based on the total number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling the Holders; and (iii) third, to any shareholder of the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities Company (other than securities to be sold by the Companya Holder) have been first excluded, (ii) on a pro rata basis. No such reduction shall reduce the amount of securities of the selling Holders included in the offering be reduced registration below thirty fifteen percent (3015%) of the total amount of securities included in such offeringregistration, unless such offering is the Initial OfferingOffering and such registration does not include shares of any other selling shareholders, in which case event any or all of the selling Registrable Securities of the Holders may be excluded if in accordance with the underwriters make the determination described above and immediately preceding sentence. In no event will shares of any other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder selling shareholder be included in such offering if any registration which would reduce the number of shares which may be included by Holders without the written consent of Holders of not less than two-thirds (66 2/3%) of the Registrable Securities held by proposed to be sold in the offering. If any Holder (and that does not agree to the terms of any such Holder has requested to underwriting, the holder shall be registered) are excluded therefrom by written notice from the Company or the underwriter. Any Registrable Securities or other securities excluded or withdrawn from such offeringunderwriting shall be withdrawn from such registration. For purposes If shares are so withdrawn from the registration and or if the number of the above sentence concerning apportionment, for any selling stockholder that is a Holder shares of Registrable Securities and that is to be included in such registration was previously reduced as a venture capital fund, partnership, limited liability company or corporationresult of marketing factors, the affiliated venture capital fundsCompany shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, partners, members, retired partners, retired members and stockholders with such shares to be allocated among the persons requesting additional inclusion pro rata according to the total amount of securities entitled to be included in such Holder, registration owned by each such person or the estates and family members of any in such partners and retired partners and any trusts for the benefit of any of the foregoing persons other proportions as shall be deemed to be a single “mutually agreed by such selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.shareholders. For
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of being issued by the Company’s capital stock, the Company shall not be required under this Section 1.3 9.3 to include any of the Holders’ securities ' Registrable Securities in such underwriting or the registration statement relating thereto unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by Holders and other stockholders to be included in such offering exceeds the amount of securities sold (offered other than by the Company) Company that the underwriters determine in good faith is compatible with reasonably believe can be offered without jeopardizing the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith believe will not jeopardize the success of the offering. The Company will include in such registration To achieve any necessary reduction in the following order of priority: (i) firstsecurities to be sold, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to be registered by excluded from the selling Holders offering shall first be selected (in each case, pro rata among such class of holders according to the total amount of securities proposed to be included pro rata based on in the number of Registrable Securities held by all selling Holders registration statement or in such other proportions as shall mutually be agreed to by all such selling Holdersclass of holders) in the following order (subject to any contrary provisions in registration rights agreements executed by the Company prior to the date hereof): (i) first, securities being included on behalf of holders other than members of the Zell Xxxup shall be excluded, except for securities of holders referred to in clause (iii) below; (ii) next, if additional securities must be excluded, Registrable Securities included pursuant to Section 9.3 shall be excluded; (iii) thereafter, if additional securities must be excluded, securities included on behalf of a holder exercising demand registration rights similar to those set forth in Section 9.2 shall be excluded; and (iiiiv) thirdfinally, if additional securities must be excluded, securities offered by the number of securities that are requested to be registered by other stockholders Company shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Samples: Purchase Agreement (Samstock LLC)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: (i) first, the securities the Company proposes to sell shall be included; sell, and (ii) second, the number Registrable Securities proposed to be included in such registration. In no event shall any Registrable Securities be excluded from such offering unless all other stockholders' securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired entities under common investment management with and the partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of being issued by the Company’s capital stock, the Company shall not be required under this Section 1.3 5.3 to include any of the Holders’ securities ' Registrable Securities in such underwriting or the registration statement relating thereto unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by Holders and other stockholders to be included in such offering exceeds the amount of securities sold (offered other than by the Company) Company that the underwriters determine in good faith is compatible with reasonably believe can be offered without jeopardizing the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith believe will not jeopardize the success of the offering. The Company will include in such registration To achieve any necessary reduction in the following order of priority: (i) firstsecurities to be sold, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to be registered by excluded from the selling Holders offering shall first be selected (in each case, pro rata among such class of holders according to the total amount of securities proposed to be included pro rata based on in the number of Registrable Securities held by all selling Holders registration 15 statement or in such other proportions as shall mutually be agreed to by all such selling Holdersclass of holders) in the following order (subject to any contrary provisions in registration rights agreements executed by the Company prior to the date hereof): (i) first, securities being included on behalf of holders other than members of the Zell Xxxup shall be excluded, except for securities of holders referred to in clause (iii) below; (ii) next, if additional securities must be excluded, Registrable Securities included pursuant to Section 5.3 shall be excluded; (iii) thereafter, if additional securities must be excluded, securities included on behalf of a holder exercising demand registration rights similar to those set forth in Section 5.2 shall be excluded; and (iiiiv) thirdfinally, if additional securities must be excluded, securities offered by the number of securities that are requested to be registered by other stockholders Company shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities then held by all selling Holders or in such other proportions as shall mutually be CONFIDENTIAL 6 agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stocksecurities requiring notification by the Company to the Holders, as described in Section 1.3(a) above, the Company shall not be required under this Section 1.3 to include any of the Holders’ Holder’s securities in such underwriting unless they accept such Holder accepts the terms of the underwriting agreement in customary form (as agreed upon between the Company and the underwriter or underwriters selected by the Company (or by other persons entitled to select the underwriters)) and enter into an underwriting agreement in customary form with such underwriter or underwriters, and then only in such quantity of the Holders’ securities as the underwriters determine in good faith may advise will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders shareholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith may advise is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith may advise will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other selling shareholders’ securities have been excluded in the same manner. In the event that the underwriters advise that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Public Offering, in which case the amount of securities of the selling Holders included in the offering may be excluded if reduced on the basis and as advised by the underwriters make the determination described above and as provided above, including completely, if, no other stockholdershareholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” , and any pro rata reduction with respect to such “selling Holder” , shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Longtop Financial Technologies LTD)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form ), subject to compliance with such underwritersthe terms of Section 1.10 herein, and then only in such quantity as the underwriters determine reasonably in good faith their sole discretion and so advise the Company and the Holders in writing will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering pursuant to Section 1.3 only that number of such securities, including Registrable Securities, that which the underwriters determine reasonably in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall stockholders participating under Section 1.3 according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders stockholder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iiistockholders) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the such selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities (including without limitation any securities to be sold by the Company) included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the case, such selling Holders stockholders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offeringpursuant to Section 1.3; provided, or (iii) any securities held by a Common Holder be included in such offering however, that if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) of the Holders’ securities are excluded from a registration pursuant to operation of this Section 1.8, then no party (other than a Holder) shall sell shares in such offeringregistration other than the Company. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holderholder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holderstockholder,” and any pro pro-rata reduction with respect to such “selling Holderstockholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such “selling stockholder,” as defined in this sentence.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.2 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including including, without limitation, Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including including, without limitation, Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other stockholders’ securities (other than securities to be sold by the Company) have been first excluded, excluded from the offering and (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Samples: Investors’ Rights Agreement (ARMO BioSciences, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersan underwriter or underwriters selected by the Company, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders shareholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders Holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third), the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included, (ii) the amount of securities of the selling Holders included in the offering be reduced until all securities held by employees of the Company or, after exclusion of all of any such employees' shares, other stockholders of the Company have first been excluded from such offering, or (iii) notwithstanding (i) or (ii) above, any securities held shares being sold by a Common Holder shareholder exercising a demand registration right similar to that granted in Section 1.2 be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” " and any pro rata reduction with respect to such “"selling Holder” " shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 3.2 to include any of the Holders’ Holder's securities in such underwriting unless they accept such Holder complies with the terms last sentence of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled Section 3.3(e) of this Agreement. If, in connection with a registration pursuant to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersSection 3.2, and then only in such quantity as the underwriters determine in good faith will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than that, in the written opinion of the managing underwriters for such offering, when added to the securities being registered by the Company) that , will exceed the underwriters determine in good faith is compatible with the success maximum amount of the Company's securities which can be marketed (a) at a price reasonably related to their then current market value, and (b) without materially and adversely affecting the entire offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not materially jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall be included pro rata based on stockholders according to the number total amount of Registrable Securities held securities owned by all each selling Holders stockholder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, stockholders). If the number Holders have validly requested registration of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any more than 250,000 Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities and at least 250,000 Registrable Securities are not included in such offeringregistration statement for sale (either upon effectiveness or ninety (90) days thereafter), unless then such offering is Holders shall receive one additional demand registration for their Registrable Securities on the Initial Offeringterms set forth in Section 3.1 hereof which, without regard to the 18-month restriction in which case the selling Holders such Section, may be excluded if exercised after ninety days after the underwriters make effectiveness of the determination described above and no other stockholder’s registration statement from which their securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offeringwere excluded. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holderholder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” stockholder", and any pro rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares owned by all such related entities and individualsindividuals included in such "selling stockholder", as defined in this sentence.
Appears in 1 contract
Samples: And Registration Rights Agreement (Overseas Filmgroup Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersan underwriter or underwriters selected by the Company, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in offering (the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders Holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third), the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty thirty-five percent (3035%) of the total amount of securities included in such offering, unless such offering is the Initial OfferingOffering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offeringincluded, or (iiiii) notwithstanding (i) above, any securities held shares being sold by a Common Holder exercising a demand registration right granted in Section 1.2 be excluded from such offering. In no event will shares of any other selling stockholder be included in such offering if any registration that would reduce the number of shares which may be included by Holders without the written consent of Holders of not less than a majority of the Registrable Securities held by any Holder (and that such Holder has requested proposed to be registered) are excluded from such sold in the offering. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ or the Founders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters), and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall stockholders according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders stockholder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iiistockholders) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders and the Founders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling stockholders (including the Holders and Founders) may be excluded entirely if the underwriters make the determination described above and no other stockholder’s securities are included in such offeringincluded, or (iiiii) notwithstanding (i) above, any securities held shares being sold by a Common Holder stockholder exercising a demand registration right similar to that granted in Section 1.2 be excluded from such offering. Notwithstanding the above, if the total amount of securities requested by stockholders to be included in such offering if any Registrable Securities held exceeds the amount of securities sold other than by any Holder the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then no individual Founder shall be entitled to include in excess of 15,000 shares (subject to appropriate adjustment for stock splits, stock dividends, combinations and that such Holder has requested to be registeredother recapitalizations) are excluded from in such offering. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that is a Holder holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holderholder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holderstockholder,” and any pro rata reduction with respect to such “selling Holderstockholder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such “selling stockholder,” as defined in this sentence.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 2.3 to include any of the Series A Holders’ ', Series B Holders' or Series C Holders' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting ), provided that such agreement in customary form with such underwriters, and then only in such quantity as does not require indemnification by any of them except to the underwriters determine in good faith will not jeopardize the success of the offering extent contemplated by the CompanySection 2.10 hereof. If the total amount of securities, including Registrable Securities, requested by stockholders the Series A Holders, Series B Holders or Series C Holders to be included in such offering exceeds the amount of securities sold (other than by the Company) that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: (i) first, the securities the Company proposes to sell shall be includedfor its own account; (ii) second, to the extent that the number of securities the Company proposes to sell is less than the number of securities which the Company has been advised can be sold in such offering, such number of Registrable Securities that are which the Series A Holders, Series B Holders and Series C Holders have requested to be registered included in such registration pursuant to Section 2.3 hereof; provided, however, in no event will shares of any other selling stockholder be included in such registration which would reduce the number of shares which have been requested to be included by the selling Series A, Series B and Series C Holders (or completely exclude the shares held by Series A, Series B and C Holders) without the written consent of a majority of the then outstanding Registrable Securities proposed to be sold in the offering; and (iii) third, to the extent that the number of securities which are to be included in such registration pursuant to clauses (i) and (ii) is, in the aggregate, less than the number of securities which the Company has been advised can be sold in such offering, such number of other securities requested to be included in the offering for the account of any holders not contractually entitled to registration which, in the opinion of the underwriters, is compatible with the success of the offering. The number of Registrable Securities included in such registration statement shall be included allocated pro rata among the holders of Registrable Securities based on the number of Registrable Securities held by all selling Holders each of them or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) thirdthem, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be shares being sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included such a holder exercising a demand registration right similar to that granted in the offering Section 2.2 or 2.4 be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holderholder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” stockholder" and any pro pro-rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such "selling stockholder," as defined in this sentence. In no event shall the amount of Registrable Securities the Series A, Series B or Series C Holders request to be included in the registration pursuant to Section 2.3 be reduced below twenty-five (25%) of the total amount of securities included in such registration, unless such offering is the initial public offering of the Company's Common Stock under the Securities Act, in which event any or all of the Registrable Securities of the Series A, Series B or Series C Holders may be excluded in accordance with this Section 2.8.
Appears in 1 contract
Underwriting Requirements. In connection with any underwritten offering involving an underwriting ------------------------- of shares of the Company’s capital stocka Holder's Registrable Securities, the Company shall not be required under this Section 1.3 2.4 to include register any of such Registrable Securities in connection with such underwritten offering unless the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and Holder accepts the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine lead managing underwriter determines, in its good faith discretion, will not jeopardize the success of the offering by the Company. If To the total amount extent that the lead managing underwriter will not permit the registration of securitiesall of the Registrable Securities sought to be registered, including in the case of a registration pursuant to Section 2.1 or 2.2, the Registrable Securities, requested by stockholders Securities to be included in such offering exceeds the amount of securities sold (other than by the Company) that the underwriters determine in good faith is compatible with the success of the offering, then the Company shall be required to include in apportioned among the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to be registered by the selling Holders shall be included on a pro rata basis (based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number shares of securities that are requested Common Stock proposed to be registered by other stockholders each), first among the Holders of Registrable Securities to be registered pursuant to Section 2.1, and thereafter among the Holders of Registrable Securities to be registered pursuant to Section 2.2; provided, -------- however, that the right of the underwriters to exclude Registrable Securities ------- from the registration and underwriting as described above shall be included pro rata based on the number of securities restricted such that all shares that are not Registrable Securities and all shares that are held by all persons who are employees or directors of the Company (or any subsidiary of the Company) shall first be excluded from such stockholdersregistration and underwriting before any Registrable Securities are so excluded. Notwithstanding the foregoing, the Holders' Registrable Securities shall in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) to less than one-third of the total amount number of shares of Common Stock to be registered in connection with a Piggyback Registration. Those Registrable Securities and other securities that are excluded from the underwriting by reason of the managing underwriter's marketing limitation and all other Registrable Securities not originally requested to be so included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder shall not be included in such offering if any Registrable Securities held registration and shall be withheld from the market by any Holder (and that such Holder has requested the Holders thereof for a period, not to be registered) are excluded from such exceed 90 days, which the managing underwriter reasonably determines necessary to effect the underwritten public offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a No Holder of Registrable Securities shall be entitled to participate in an underwritten offering unless such Holder enters into, and that is a venture capital fundperforms its obligations under, partnership, limited liability company one or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners more underwriting agreements and any trusts for the benefit related agreements and documents (including an escrow agreement and/or a power of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction attorney with respect to the disposition of the Registrable Securities), in the form that such “selling Holder” Holder shall agree to with the lead managing underwriter of the transaction. If any Holder disapproves of the terms of any underwriting, it may elect, prior to the execution of any underwriting agreement, to withdraw therefrom by written notice to the Company and the lead managing underwriter. Any Registrable Securities so withdrawn from an underwriting by such Holder shall be based upon withdrawn from such registration and shall not be transferred in a public distribution prior to 180 days following the aggregate amount effective date of Registrable Securities owned by all such related entities and individualsthe registration statement relating thereto.
Appears in 1 contract
Samples: Preferred Shareholder Registration Rights Agreement (Net2phone Inc)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.2 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually || be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other stockholders’ securities (other than securities to be sold by the Company) have been first excludedexcluded from the offering, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder other than a Common Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company company, or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members members, and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the The Company shall not be required under this Section 1.3 Sections 3 or 11 to include any of the Holders’ ' securities in an underwritten offering of the Company's securities unless such underwriting unless they Holders accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company, assuming usual and customary underwriting terms. Notwithstanding any other provisions of this Agreement, in the case of an underwritten offering in which Registrable Securities are to be included pursuant to Section 3, if the managing underwriter shall advise the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith will not jeopardize the success of the offering by the Company. If writing that the total amount number of securities, including Registrable Securities, requested by stockholders shareholders to be included in such offering exceeds the amount of securities sold (securities, other than securities to be sold by the Company) , that the underwriters determine in good faith is compatible with the success of the offeringmarketing factors allow, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith will not jeopardize managing underwriter believes marketing factors allow the success of the offering. The Company will include in such registration in the following order of prioritysecurities so included to be reduced as follows: (i) firstall securities which are not Registrable Securities, securities held by Laurus, or its affiliates, or securities covered by the securities Registration Rights Agreement dated August 15, 1997 (the Company proposes to sell "Registration Agreement") shall be included; excluded from the offering to the extent limitation on the number of shares included in the underwriting is required, and (ii) second, if further limitation on the number of shares to be included in the underwriting is required, then the number of shares that may be included in the underwriting held by Holders of Registrable Securities that are shall be reduced pro rata based on the total number of securities held by such persons; provided that, in no event shall the number of securities requested to be registered by the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) 20% of the total amount of securities included aggregate shares to be offered in such offering, the registration unless such offering is Holders request that securities constituting less than 20% of the Initial Offeringaggregate shares to be offered in the registration be registered on such Registration Statement, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s event, all such securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individualsincluded.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of being issued by the Company’s capital stock, the Company shall not be required under this Section 1.3 2.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersit, and then only in such quantity as will not, in the underwriters determine in good faith will not opinion of the underwriters, jeopardize the success of the offering by the Company; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Holders greater than the obligations set forth in Section 2.10(b). If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith is reasonably believe compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith believe will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall stockholders according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders stockholder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) thirdstockholders, provided that the number Holders shall have the first right to include all of securities that are requested to be registered their shares in the offering before any shares held by other stockholders shall be included pro rata based on the number of securities held by all such selling stockholders. Notwithstanding the foregoing, ) and in no event shall (i) any Registrable Securities the Holder's shares be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities reduced below 25% of the selling Holders shares sold in any offering with the exception of the Qualified IPO. In the event the Company reduces the number of Holder's shares included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is as set forth in the Initial Offeringprevious sentence, the underwriter must first set forth its reasons for the reduction in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offeringwriting. For purposes of the above sentence concerning apportionment, for any selling stockholder that which is a Holder of Registrable Securities and that which is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holder,” stockholder", and any pro rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such "selling stockholder," as defined in this sentence.
Appears in 1 contract
Samples: Rights Agreement (Ondisplay Inc)
Underwriting Requirements. (i) In connection with any offering involving an underwriting of shares of the Company’s capital stockEquity Securities, the Company shall not be required to Register the Registrable Securities of a Holder under this Section 1.3 to include any of 3 hereof unless such Holder’s Registrable Securities are included in the Holders’ securities in underwritten offering and such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter Holder enters into an underwriting agreement in customary form with the underwriter or underwriters of internationally recognized standing selected by the Company and setting forth such terms for the underwritten offering as have been agreed upon between the Company and the underwriters. In the event the underwriters advise Holders seeking Registration of Registrable Securities pursuant to Section 3 hereof in writing that market factors (including the aggregate number of Registrable Securities requested to be Registered, the general condition of the market, and then only the status of the Persons proposing to sell securities pursuant to the Registration) require a limitation of the number of Registrable Securities to be underwritten, the underwriters may exclude shares from the Registration and the underwriting, and the number of shares that may be included in the Registration and the underwriting shall be allocated, first, to the Company, second, to each of the Holders requesting inclusion of their Registrable Securities in such quantity as Registration Statement on a pro rata basis based on the underwriters determine in good faith will not jeopardize the success total number of shares of Registrable Securities then held by each such Holder, and third, to holders of other Equity Securities of the offering by Company; provided, however, that the Company. If right of the total amount of securities, underwriter(s) to exclude shares (including Registrable Securities) from the Registration and underwriting as described above shall be restricted so that all shares that are not Registrable Securities and are held by any other Person, including, without limitation, any Person who is an employee, officer or director of the Company (or any subsidiary of the Company) shall first be excluded from such Registration and underwriting before any Registrable Securities are so excluded; provided, further, that, other than in the case of the Company’s IPO, the Registrable Securities requested by stockholders the Holders to be included in such offering exceeds the amount of securities sold (other underwriting and Registration shall not be cut back to less than by the Company) that the underwriters determine in good faith is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to be registered by the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount Equity Securities of securities the Company included in such offeringunderwriting and Registration. In any event, unless such offering is no Shareholder shall be granted Registration pursuant to Section 3.1 hereof which would reduce the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder number of Shares to be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes the Holders except with the consent of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individualsPreferred Shareholders.
Appears in 1 contract
Samples: Shareholders’ Agreement (Q&K INTERNATIONAL GROUP LTD)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting underwriting, in customary form, as agreed upon between the Company and the underwriters selected by the Company (or it and approved by other persons entitled to select the underwriters) a majority in interest of holders of Registrable Securities, and enter into an such underwriting agreement in customary form with such underwritersagreement, and then only in such quantity as the underwriters determine in good faith their sole discretion will not materially and adversely jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders Holders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith is compatible with their sole discretion could materially and adversely jeopardize the success of the offering, then the Company shall be required to include in the offering only that number of such securitiessecurities (if any), including Registrable Securities, that the underwriters determine in good faith their sole discretion will not materially and adversely jeopardize the success of the offering. The Company will include , and there shall be included in such registration and underwriting to the extent necessary to satisfy such limitation, the amount of Registrable Securities held by the Lead Investor and requested to be included in the following order offering up to an amount which shall equal the lesser of priority: (ia) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are which the Lead Investor has requested to be registered by the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; offering and (iiib) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty five percent (3025%) of the total amount of securities included in such offering, unless such offering is excluding the Initial Offering, securities being offered by the Company. Any Registrable Securities remaining available for inclusion in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder offering will be included according to the order of precedence set forth in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registeredSection 1.2(iii)(a) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individualsabove.
Appears in 1 contract
Samples: Registration and Information Rights Agreement (Galmed Pharmaceuticals Ltd.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters underwriter(s) selected by the Company Initiating Holders (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters), and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount number of securities, including Registrable Securities, requested by stockholders holders of capital stock to be included in such offering exceeds the amount number of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall security holders according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders security holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholderssecurity holders). Notwithstanding the foregoing, in no event shall (i) any shall the number of Registrable Securities included in the offering be excluded from such offering reduced unless all other securities (other than securities to be sold by the Company) have been are first excluded, entirely excluded from the offering or (ii) shall the amount number of securities of the selling Holders Registrable Securities included in the offering pursuant to Section 1.3 be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offeringreduced. For purposes of the above sentence parenthetical concerning apportionmentapportionment in this Section 1.8, for any selling stockholder that security holder which is a Holder holder of Registrable Securities and that which is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders holders of capital stock of such Holderholder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holdersecurity holder,” and any pro pro-rata reduction with respect to such “selling Holdersecurity holder” shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such “selling security holder,” as defined in this sentence. For purposes of Sections 1.2, 1.3 and 1.4, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in this Section 1.8, fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included.
Appears in 1 contract
Samples: Registration Rights Agreement (Housatonic Equity Partners IV, L.L.C.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.2 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting (so long as such terms are customary) as agreed upon between the Company and the underwriters selected by the Company (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other stockholders’ securities (other than securities to be sold by the Company) have been first excludedexcluded from the offering, and (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital or other investment fund, partnership, limited liability company partnership or corporation, the affiliated venture capital or other investment funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Samples: Rights Agreement (Compass, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of being issued by the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersit, and then only in such quantity as will not, in the underwriters determine in good faith will not opinion of the underwriters, jeopardize the success of the offering by the Company; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of the Holders greater than the obligations set forth in Section 1.10(b). If the total amount of securities, including Registrable Securities, requested by stockholders shareholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith is reasonably believe compatible with the success of the offering, then the Company shall be required to include in the offering only that number of underwriter(s) may exclude such securities, shares (including Registrable Securities, that ) which the underwriters determine in good faith believe will not jeopardize the success of the offering. The Company will include offering from the registration and the underwriting, and the number of shares that may be included in the registration and the underwriting shall be allocated, first, to the Company, and second, to each of the Holders requesting inclusion of their Registrable Securities in such registration in statement on a pro rata basis based on the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the total number of Registrable Securities that are requested to be registered by the selling Holders shall be included pro rata based on the number of Registrable Securities then held by all selling Holders or in each such other proportions as shall mutually be agreed to by all such selling HoldersHolder; and (iiiprovided, however, that the underwriter(s) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) may not reduce the amount of securities of the selling Holders included in the offering be reduced registration below thirty percent twenty-five (3025%) of the total amount of securities included in such offeringregistration, unless such offering is the Initial Offeringinitial public offering and such registration does not include shares of any other selling shareholders, in which case event any or all of the Registrable Securities of the selling Holders may be excluded if the underwriters make the determination described above and excluded. In no event will shares of any other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder selling shareholder be included in such offering if registration which would reduce the number of shares which may be included by the selling Holders. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter, delivered at least ten (10) business days prior to the effective date of the registration statement. If any Holder withdraws from such underwriting, the Company shall include in such underwriting a number of shares of Registrable Securities equal to the number of shares which such Holder withdrew from the underwriting allocated to those Holders participating in the registration who desire to register additional Registrable Securities on a pro rata basis based on the number of Registrable Securities then held by any Holder each such Holder. Any Registrable Securities excluded or withdrawn (and that such Holder has requested to be registerednot reallocated) are excluded from such offeringunderwriting shall be excluded and withdrawn from the registration. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that which is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders shareholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling "Holder,” ", and any pro rata reduction with respect to such “selling "Holder” " shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such "Holder," as defined in this sentence.
Appears in 1 contract
Underwriting Requirements. In connection with any underwritten ------------------------- offering involving an underwriting of shares of the Company’s capital stocka Holder's Registrable Securities, the Company shall not be required under this Section 1.3 2.3 to include register any of the Holders’ securities such Registrable Securities in connection with such underwriting underwritten offering unless they accept the terms of the underwriting as agreed upon between the Company and consents to the underwriters selected by the Company Holders participating in the registration (or by other persons entitled to select the underwriterswhich consent shall not be unreasonably withheld) and enter into an underwriting agreement in customary form with such underwriters, and then the Company shall be required to register Registrable Securities only in such quantity as the underwriters determine lead managing underwriter determines, in its good faith discretion, will not jeopardize the success of the offering by the Company. If To the total amount extent that the lead managing underwriter will not permit the registration of securitiesall of the Registrable Securities sought to be registered, including in the case of a registration pursuant to Section 2.1(a), the Registrable Securities, requested by stockholders Securities to be included in such offering exceeds the amount of securities sold (other than by the Company) that the underwriters determine in good faith is compatible with the success of the offering, then the Company shall be required to include in apportioned among the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to be registered by the selling Holders shall be included on a pro rata basis (based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested proposed to be registered by other stockholders each); provided, however, that the right of the underwriters to exclude -------- ------- Registrable Securities from the registration and underwriting as described above shall be included pro rata based on the number of restricted such that all securities that are not Registrable Securities and all securities that are held by all such stockholders. Notwithstanding persons who are employees or directors of the foregoing, in no event Company (or any subsidiary of the Company) shall (i) any Registrable Securities first be excluded from such offering unless registration and underwriting before any Registrable Securities are so excluded. Those Registrable Securities and other securities that are excluded from the underwriting by reason of the managing underwriter's marketing limitation and all other securities (other than securities Registrable Securities not originally requested to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders so included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder shall not be included in such offering if any Registrable Securities held registration and shall be withheld from the market by any Holder (and that such Holder has requested the Holders thereof for a period, not to be registered) are excluded from such exceed 90 days, which the managing underwriter reasonably determines necessary to effect the underwritten public offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a No Holder of Registrable Securities shall be entitled to participate in an underwritten offering unless such Holder enters into, and that is a venture capital fundperforms its obligations under, partnership, limited liability company one or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners more underwriting agreements and any trusts for the benefit related agreements and documents (which may include an escrow agreement and/or a power of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction attorney with respect to the disposition of the Registrable Securities), in the form that such “selling Holder” Holder shall be based upon agree to with the aggregate amount lead managing underwriter of Registrable Securities owned the transaction. If any Holder disapproves of the terms of any underwriting, it may elect, prior to the execution of any underwriting agreement, to withdraw therefrom by all such related entities written notice to the Company and individualsthe lead managing underwriter.
Appears in 1 contract
Samples: Registration Rights and Exchange Agreement (Liberty Media Corp /De/)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty ten percent (3010%) of the total amount of securities included in such offering, unless such offering is the Initial Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an ------------------------- underwriting of shares of being issued by the Company’s capital stock, the Company shall not be required under this Section 1.3 2.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it and approved by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersCompany's Board of Directors, and then only in such quantity as will not, in the underwriters determine in good faith will not jeopardize opinion of the underwriters, adversely affect the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith is compatible with reasonably believe would not adversely affect the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith believe will not jeopardize adversely affect the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities so included to be apportioned first to the Company proposes Company, then pro rata among the selling Holders according to sell shall be included; (ii) second, the number total amount of Registrable Securities that are requested entitled to be registered included therein owned by the each selling Holders shall be included pro rata based on the number of Registrable Securities held by Holder and then to all other selling Holders stockholders, or in such other proportions as shall mutually be agreed to by all such selling Holdersstockholders); and (iii) thirdprovided, the number of securities however, that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) % of the total amount of securities included in such offering, unless such offering is the Initial Offering, Company's initial public offering in which case the selling Holders may be excluded if the underwriters make managing underwriter makes the determination described above and no securities other stockholder’s securities than those of the Company or Xxxxxxx Xxxxx are included included; and provided further, that with respect to the Qualified IPO, Investors who invested less than $20,000 in such offering, or (iii) any securities held by a Common Holder the Company's Preferred Stock may be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offeringregistration. For purposes of the above first parenthetical in the preceding sentence concerning apportionment, for any selling stockholder that which is a Holder holder of Registrable Securities and that which is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members affiliated partnerships, and stockholders of such Holderholder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holderstockholder,” " and any pro rata reduction with respect to such “"selling Holder” stockholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such "selling stockholder," as defined in this sentence.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company; provided, that no Holder shall be required to make any representations or warranties to, or agreements with, the Company or the underwriters other than representations, warranties or agreements regarding such Holder and its ownership of and title to the Registrable Securities; and any liability of such Holder to any underwriter or other Person under such underwriting agreement shall be limited to liability arising from breach of its representations and warranties and shall be limited to an amount equal to the net proceeds (after deducting any underwriting discount or commission) that it derives from such registration. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities, including the Registrable Securities held by the Key Holders, have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty thirty-three percent (3033%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members, and retired partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 2.2 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons Persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned pro rata among the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other stockholders’ securities (other than securities to be sold by the Company) have been first excludedexcluded from the offering, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or offering and (iii) notwithstanding (ii) above, any securities held shares being sold by a Common Holder stockholder exercising a demand registration right similar to that granted in Section 2.1 be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners and any trusts for the benefit of any of the foregoing persons Persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersan underwriter or underwriters selected by the Company, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount number of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in In such registration in the following order of priority: (i) first, the securities event the Company proposes to sell shall so advise all Holders of Registrable Securities that would otherwise be included; (ii) secondunderwritten pursuant hereto, and the number of Registrable Securities that are requested to may be registered included in the underwriting shall be determined by the selling Holders shall be included pro rata based on following procedure. Each Holder may include that number of Registrable Securities owned by such Holder that is the product of multiplying the number of Registrable Securities owned by such Holder by a fraction, the numerator of which shall be the number of the then outstanding Registrable Securities owned by such Holder and the denominator of which shall be the sum of the then outstanding Registrable Securities held by all selling Holders, provided, however, if any Holder does not request inclusion of the maximum number of Registrable Securities allocated to such Holder pursuant to the above-described procedure, the remaining portion of such Holder's allocation shall be reallocated among those requesting Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, whose allocations did not satisfy their requests pro rata on the basis of the number of securities that Registrable Securities which are requested to be registered then held by other stockholders such Holders. This reallocation procedure shall be repeated until all Registrable Securities which may be included pro rata based in the registration on behalf of the number of securities held by all such stockholdersHolders have been so allocated. Notwithstanding the foregoingforgoing, except for the Company's initial public offering of its Common Stock, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of Registrable Securities owned by the selling Holders Series A Investors and Series B Investor which are included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless offering with such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested inclusion to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is determined on a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon basis among the aggregate amount of Registrable Securities owned by all such related entities and individualsHolders requesting Registration.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of being issued by the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ ' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters), and then only in such quantity as will not, in the underwriters determine in good faith will not opinion of the underwriters, jeopardize the success of the offering by the Company. If , but in no event will other shareholder's securities (other than Registrable Securities held by Holders or securities being sold by the total amount of securities, including Registrable Securities, requested by stockholders to Company) be included in such offering exceeds if the amount of securities sold (other than by the Company) that the underwriters determine in good faith is compatible with the success Registrable Securities of the offering, then the Company shall be required to include any selling Holder included in the offering only that number of such securitiesis reduced or limited, including Registrable Securities, that and in no event will the underwriters determine in good faith will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number amount of Registrable Securities that are requested to be registered by of the selling Holders shall included in the offering be reduced below 20% of the total amount of securities included in such offering (the Registrable Securities so included to be apportioned pro rata based on among the number selling Holders according to the total amount of Registrable Securities held entitled to be included therein owned by all each selling Holders Holder ,or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering), unless such offering is the Initial Offeringinitial public offering of the Company's securities, in which case the selling Holders may be excluded entirely if the underwriters make the determination described above and no other stockholder’s shareholder's securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offeringincluded. For purposes of the above sentence concerning apportionment, for any selling stockholder shareholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital fundspartners, retired partners, members, retired partners, retired members and stockholders shareholders of such Holder, or the estates and family members of any such partners partners, retired partners, members and retired partners members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “"selling Holdershareholder,” " and any pro rata reduction with respect to such “"selling Holder” shareholder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such "selling shareholder," as defined in this sentence. The Company shall have the right to include shares now or hereafter owned by the Company's officers and employee directors that are not already, by virtue of this Agreement, deemed Registrable Securities (the "Management Shares") in any registration pursuant to Section 1.3, provided, however, that all of the Management Shares shall be excluded from such registration before any Registrable Securities are excluded from such registration pursuant to Section 1.8 hereof. If Management Shares are included in a registration pursuant to Section 1.3, each holder of Management Shares will be deemed a "Holder" (as that term is defined in Section 1 of this Agreement) for all purposes under this Agreement pertaining to such registration.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s Acusphere's capital stock, the Company Acusphere shall not be required under this Section 1.3 2.3 to include any of the Holders’ ' securities in such underwriting unless they such Holders accept the terms of the underwriting as agreed upon between the Company Acusphere and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersunderwriters pursuant to the terms of this Agreement), and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the CompanyAcusphere. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities to be sold (other than by the CompanyAcusphere) that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company Acusphere shall be required to include in the offering only that number of such securities, including Registrable Securities, that which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering; provided, however, there shall first be excluded from such registration statement all shares of Common Stock sought to be included therein by (i) any director, consultant, officer or employee of Acusphere or any subsidiary of Acusphere (except those joining such registration pursuant to the Stock Repurchase and Registration Agreement, dated April 30, 1996, among Acusphere, Robert S. Langer, Harry R. Allcock and Sherri C. Oberg, the "Founderx' Xxxxxxxxxxxx Agxxxxxxx"), xxx (ii) sxxxxxxxxxxx xxxrcising any contractual or incidental registration rights subordinate and junior to the rights of the Holders of Registrable Securities. The Company will include Thereafter, the shares of Common Stock sought to be included in such registration in the following order of priority: (i) firststatement pursuant to this Agreement and, if applicable, the securities the Company proposes to sell Founders' Registration Agreement, shall be included; excluded from such registration statement in proportion (iias nearly as practicable) secondto the amount of such shares owned by the holders of such shares. If after such shares are excluded, the underwriters shall determine in their sole discretion that the number of Registrable Securities that are requested securities which remain to be registered by included in the selling Holders offering exceeds the amount of securities to be sold that the underwriters determine is compatible with the success of the offering, then the Common Stock to be included, if any, shall be included apportioned pro rata based on among the number holders of Registrable Securities held Common Stock providing notice of their desire to participate in the offering pursuant to this Agreement and the Founders' Registration Agreement (the "Selling Stockholders") according to the total amount of securities entitled to be included therein owned by all selling Holders each Selling Stockholder, or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholdersSelling Stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders Selling Stockholders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, initial public offering of Acusphere's securities in which case the selling Holders Selling Stockholders may be excluded if the underwriters make the determination described above and no other stockholder’s 's securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offeringincluded. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that Selling Stockholder which is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such HolderSelling Stockholder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” "Selling Stockholder", and any pro pro-rata reduction with respect to such “"selling Holder” holder" shall be based upon the aggregate amount of Registrable Securities shares carrying registration rights owned by all such related entities and individualsindividuals included in such "Selling Stockholder", as defined in this sentence.
Appears in 1 contract
Samples: ' Rights Agreement (Acusphere Inc)
Underwriting Requirements. (a) In connection with any underwritten offering involving an underwriting of shares of the Company’s capital stockpursuant to Section 5.1, the Company shall not be required under this Section 1.3 entitled to include any of the Holders’ securities in such underwriting unless they any securities not held by Holder; except that the Company shall be entitled to include (i) some or all of the securities held by one or more of ABKB/LaSalle Securities Limited Partnership, Xxxxx & Steers Capital Management, Inc., Xxxxxx Xxxxxxx Asset Management, Fidelity Management and Research, Stanford University, State of Michigan Retirement Systems (collectively, the "Equity Investors") pursuant to that certain Term Sheet with AOPP dated December 3, 1997 attached hereto (the "Term Sheet") and (ii) some or all of the securities held by the parties listed on Exhibit B as a result of their contribution of assets to AOPP (the "Sellers"), if such Equity Investors and/or Sellers accept the terms of the underwriting as agreed upon between the Company and agreement with the underwriters selected by the Company (or by other persons entitled pursuant to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersSection 5.2, and then only in to the extent such quantity as the underwriters determine in good faith will not jeopardize the success securities are securities of the offering by Company or securities convertible into or exchangeable or exercisable for securities of the CompanyCompany and such securities were issued pursuant to the Term Sheet. If the total amount of securities, including the Holder's Registrable SecuritiesShares and such securities of the Equity Investors and/or Sellers, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required entitled to include in the offering only that number of such securitiessecurities of Holder, including Registrable Securities, that the Equity Investors and/or Sellers which the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in , with the following order of priority: (i) firstsecurities so included to be apportioned pro rata among the Holder, the securities Equity Investors and the Company proposes Sellers in proportion to sell shall be included; (ii) second, the number of Registrable Securities that are requested to be registered by the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities initially requested by each of them to be included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Samples: Registration Rights Agreement (Ps Business Parks Inc/Ca)
Underwriting Requirements. (a) In connection with any offering involving an underwriting of shares of the Company’s capital stockstock pursuant to Section 6.1(b), Section 6.1(c) or Section 6.2, the Company shall not be required under this Section 1.3 to include any of the HoldersInvestors’ securities Conversion Shares in such underwriting unless they the Investors accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such its underwriters, and then only in such quantity as the underwriters in their sole discretion determine in good faith will not jeopardize the success of the offering by the Company. If the total amount number of securities, including Registrable SecuritiesConversion Shares, requested by stockholders to be included in such offering exceeds the amount number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine in good faith is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable SecuritiesConversion Shares, that which the underwriters and the Company in their sole discretion determine in good faith will not jeopardize the success of the offering. The Company will include in such registration in If the following order underwriters determine that less than all of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are Conversion Shares requested to be registered by can be included in such offering, then the Conversion Shares that are included in such offering shall be allocated among the selling Holders shall be included pro rata based on Investors in proportion (as nearly as practicable to) the number of Registrable Securities held Conversion Shares owned by all each selling Holders Holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) thirdInvestors. To facilitate the allocation of shares in accordance with the above provisions, the Company may in its sole discretion round the number of securities that are requested shares allocated to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholdersHolder to the nearest 100 shares. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities the number of Conversion Shares included in the offering be excluded from such offering reduced unless all other securities (other than securities to be sold by the Company) have been are first excludedentirely excluded from the offering, or (ii) the amount number of securities of the selling Holders Conversion Shares included in the offering be reduced below thirty twenty percent (3020%) of the total amount number of securities included in such offering, unless such offering is the Initial OfferingIPO, in which case the selling Holders Investors may be excluded further if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, offering or (iii) notwithstanding (ii) above, any securities held by a Common Holder Conversion Shares which are not Conversion Shares of the Key Owner be included in excluded from such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) underwriting unless all Conversion Shares of the Key Owner are first excluded from such offering. For purposes of the above sentence provision in this Section 6.3(b) concerning apportionment, for any selling stockholder Holder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company company, or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members members, stockholders, and stockholders Affiliates of such Holder, or the estates and family members Immediate Family Members of any such partners partners, retired partners, members, and retired partners members and any trusts for the benefit of any of the foregoing persons Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount number of Registrable Securities Conversion Shares owned by all Persons included in such related entities and individuals“selling Holder,” as defined in this sentence.
Appears in 1 contract
Samples: Rights and Lock Up Agreement (Signing Day Sports, Inc.)
Underwriting Requirements. In connection with any underwritten public offering involving an underwriting of shares of the Company’s capital stockstock pursuant to Section 1.3, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting offering unless they accept such Holder accepts the terms of the underwriting underwriting, as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter enters into an underwriting agreement in customary form with such underwritersthe underwriter or underwriters selected by the Company, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders Stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all the Registrable Securities requested to be registered can be included in such registration in offering, then the following order of priority: (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested to included in such offering shall be registered by apportioned first pro rata among the selling holders of Series H Preferred Stock, Series G Preferred Stock, Series F Preferred Stock, Series E Preferred Stock, Series D Preferred Stock, Series C Preferred Stock and Series B Preferred Stock, second pro rata among the selling holders of Series A Preferred Stock, third pro rata among the selling Key Holders on the basis of their relative ownership of Key Holder Registrable Securities and thereafter any remaining Registrable Securities that are included in such offering (if any) shall be included apportioned pro rata based on among the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Initial Offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital capital, private equity or other investment fund, partnership, limited liability company or corporation, the affiliated venture capital capital, private equity or other investment funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners partners, members and retired partners partners, retired members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals. For this purpose, the X. Xxxx Price Investors shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all entities and individuals included in such “selling Holder,” as defined in this sentence.
Appears in 1 contract
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company it (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwritersan underwriter or underwriters selected by the Company, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include in such registration in the following order of priority: offering (i) first, the securities the Company proposes to sell shall be included; (ii) second, the number of Registrable Securities that are requested so included to be registered by apportioned pro rata among the selling Holders shall according to the total amount of securities entitled to be included pro rata based on the number of Registrable Securities held therein owned by all each selling Holders Holder or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third), the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, but in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) 25% of the total amount of the Holder’s securities requested to be included in such offering, unless such offering is the Initial OfferingOffering of the Company’s securities, in which case the selling Holders may be excluded completely if the underwriters make the determination described above and no other stockholder’s securities are included in such offeringincluded; and (ii) notwithstanding (i) above, or (iii) any securities held by a Common any Holder be included in such offering if any Registrable Securities excluded until all securities held by any selling stockholder other than a Holder (and that such Holder has requested to be registered) are excluded from such offeringhave first been entirely excluded. For purposes of the above sentence preceding parenthetical concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company partnership or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” Holder shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Great Basin Scientific, Inc.)
Underwriting Requirements. In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold (other than by the Company) Company that the underwriters determine in good faith their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in good faith their sole discretion will not jeopardize the success of the offering. The Company will include In no event shall any Registrable Securities be excluded from such offering unless all other stockholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such registration offering, then the Registrable Securities that are included in the following order of priority: such offering shall be allocated (i) firstfirst to Holders of Registrable Securities who hold Preferred Stock, pro rata according to the securities the Company proposes to sell shall be included; number of Registrable Securities held by each such Holder and (ii) second, to the number remaining Holders of Registrable Securities that are requested to be registered by the selling Holders shall be included pro rata based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders; and (iii) third, the number of securities that are requested to be registered by other stockholders shall be included pro rata based on the number of securities held by all such stockholders. Notwithstanding the foregoing, in no event shall (i) any Registrable Securities be excluded from such offering unless all other securities (other than securities to be sold by the Company) have been first excluded, (ii) the amount of securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering, unless such offering is the Company’s first firm commitment underwritten public offering of its Common Stock under the Act (the “Initial Offering”), in which case the selling Holders may be excluded if the underwriters make the determination described above and no other stockholder’s securities are included in such offering, or (iii) any securities held by a Common Holder be included in such offering if any Registrable Securities held by any Holder (and that such Holder has requested to be registered) are excluded from such offering. For purposes of the above preceding sentence concerning apportionment, and for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership, limited liability company or corporation, the affiliated venture capital funds, partners, members, retired partners, retired members and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.purposes of
Appears in 1 contract
Samples: Agreement and Plan of Merger (Victory Acquisition Corp)
