Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof. In such event, the right of any Holder to registration pursuant to Section 4.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.2, if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Advanced Tissue Sciences Inc)
Underwriting. If the registration of which the Company Acquiror gives notice ------------ is for a registered public offering involving an underwriting, the Company Acquiror shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof2(a)(i). In such event, event the right of any Holder to registration pursuant to this Section 4.2 2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (shall, together with the Company Acquiror and the other Holders distributing their securities through such underwriting) Other Holders, if any, enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the CompanyAcquiror. Notwithstanding any other provision of this Section 4.22, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may exclude some or all limit the Registrable Securities from and other securities to be included in such registration and underwritingregistration. The Company Acquiror shall so advise all Holders (except those and Other Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting by all Holders and Other Holders shall be allocated among such Holders in proportionthem, as nearly as practicable on a pari passu basispracticable, first, to the Acquiror (or, if applicable, to the holders for whose account the Acquiror is registering the securities), second, among the Other Holders of securities in proportion to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from included in the registration and underwriting prior by such Other Holders, and, third, among the Holders in proportion to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationregistration by such Holders. If any Holder or Other Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company Acquiror and the managing underwriter. The Registrable Securities and/or other Any securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If the registration Stockholders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request and the Company shall include such information in its written notice given to the other Stockholders. The right of any Stockholder to registration pursuant to this Section 4.2(a) hereof. In such event, the right of any Holder to registration pursuant to Section 4.2 shall be conditioned upon such HolderStockholder's participation in such underwriting and the inclusion of such HolderStockholder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.2Section, if the managing underwriter determines advises the Stockholders in writing that marketing factors require a limitation of the number of shares to be underwritten, then, subject to the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The provisions of Section 2(a), the Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), Stockholders and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders all Stockholders requesting inclusion in the registration in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities originally requested by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed Stockholders to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction included in the number of Registrable Securities proposed to be sold for the account of other HoldersRegistration Statement. No Registrable Securities excluded from the underwriting by reason of the managing underwriter's marketing limitation shall be included in such registration. If any Holder Stockholder disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterother Stockholders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, that if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders Stockholders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders Stockholders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationlimitation in this Section. If the registration does not become effective due to the withdrawal of Registrable Securities, then either (1) the Stockholders requesting registration shall reimburse the Company for expenses incurred in complying with the request or (2) the aborted registration shall be treated as effected for purposes of Section 2(a)(D).
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof1.3(a)(i). In such event, event the right of any Holder to registration pursuant to Section 4.2 1.3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company, but subject to the reasonable approval of Holders holding more than a majority of the Registrable Securities to be included in such registration. Notwithstanding any other provision of this Section 4.21.3, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may exclude some or all limit the Registrable Securities from to be included in such registration and underwritingregistration. The Company shall so advise all Holders (except those Holders who have indicated to the Company and other holders distributing their decision not to distribute any of their Registrable Securities securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities securities that may be included in the registration and underwriting (other than in behalf of the Company) shall be allocated among all Holders and such Holders other holders (provided that such other holders have contractual rights to participate in such registration which are not subordinate to the Holders) in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed or other securities requested to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationregistration by such Holders and such other holders; PROVIDED, HOWEVER, in no event shall the amount of Registrable Securities of the 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 of the Company's securities in which case the Holders may be excluded entirely if the underwriters make the determination described above or the Holders holding a majority of the Registrable Securities consent in writing to such a reduction. To facilitate the allocation of shares in accordance with the above provisions, the Company may round the number of shares allocated to any Holder or holder to the nearest one hundred (100) shares. If any Holder or holder disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The Registrable Securities and/or other Any securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by and shall not be transferred in a public distribution prior to ninety (90) days after the withdrawal effective date of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration statement relating thereto, or such other shorter period of time as the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationunderwriters may require.
Appears in 1 contract
Underwriting. If the registration Holders intend to distribute the Registrable ------------ Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to Section 2.4 and the Company shall include such information in the written notice given pursuant referred to this in Section 4.2(a) hereof2.4(a)(i). In such event, the The right of any Holder to registration pursuant to Section 4.2 2.4 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent requested (unless otherwise mutually agreed by a majority in interest of the Holders and such Holder) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters of recognized national standing selected for such underwriting by the CompanyCompany with the approval of a majority in interest of the participating Holders. Notwithstanding any other provision of this Section 4.22.4, if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, underwritten or that applicable state law prohibits the underwriter may exclude some or all registration of any Holders' Registrable Securities from because of the failure or lack of obligation of such Holder to contribute to the cost of such registration and underwriting. The so advises the participating Holders in writing, then the Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), underwriting) and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all such Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities Registrable Securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation or such state law shall be included in such registration. If any Holder disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the underwriter and the underwriterother Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation. If the underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account or the account of others in such registration if the underwriter so agrees and if the number of Registrable Securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
Appears in 1 contract
Samples: Investors' Rights Agreement (Aastrom Biosciences Inc)
Underwriting. If the registration of which the Company Corporation gives notice ------------ is for a registered public offering involving an underwriting, the Company Corporation shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof1.3(b)(i)(A). In such event, event the right of any Holder to registration pursuant to this Section 4.2 1.3(b) shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company Corporation and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the CompanyCorporation, but subject to the reasonable approval of Holders holding a majority of the Registrable Securities to be included in such registration. Notwithstanding any other provision of this Section 4.21.3(b), if the managing underwriter determines in its good faith judgment that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may exclude some or all limit the Registrable Securities from to be included in such registration and underwritingregistration. The Company Corporation shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities securities that may be included in the registration and underwriting (other than in behalf of the Corporation) shall first be allocated among such all Holders in proportion, as nearly as practicable pro rata on a pari passu basis, to the respective basis of the amounts of Company securities owned Registrable Securities held by such Holders at the time of filing of the registration statement; provided, -------- however, that all unless otherwise agreed upon by the Holders of a majority of the Registrable Securities proposed desiring to participate in the offering, in no event shall the amount of Registrable Securities of the Holders included in the offering be sold for reduced below thirty percent (30%) of the account total amount of ------- securities included in such offering. No securities of the Non-participating Corporation held by parties other than the Holders (or their transferees) the Corporation shall be excluded from the included in any registration and underwriting prior to any reduction in which this section applies if the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be that would otherwise have been included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.and underwriting will thereby be
Appears in 1 contract
Underwriting. If the registration of which Holders that provide the Company gives notice ------------ is for with a registered public offering involving Request intend to distribute the Registrable Securities covered by their Request by means of an underwriting, the Company then they shall so advise the Holders Company as a part of the written notice given pursuant to this Section 4.2(a) hereoftheir Request. In such event, the right of any Holder to registration pursuant to Section 4.2 The Holders shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the CompanyCompany and approved by a majority in interest of the Holders. Notwithstanding any other provision of this Section 4.21.2, if the underwriter determines underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of shares securities to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))that would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced as required by the underwriter(s) and allocated among such the Holders in proportion, as nearly as practicable of Registrable Securities on a pari passu basis, pro rata basis according to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting then outstanding held by reason of the underwriter's marketing limitation shall be included in such registration. If any each Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such requesting registration; provided, however, that, if by that the withdrawal number of such Registrable Securities a greater number shares of Registrable Securities held by other Holders may to be included in such underwriting and registration (up to shall not be reduced unless all other securities of the maximum Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded and withdrawn from such underwriting shall be withdrawn from the registration. For any Holder that is a partnership or corporation, the partners, retired partners and shareholders of such Holder, or the estates and family members of any limitation imposed such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single "Holder," and any pro rata reduction with respect to such "Holder" shall be based upon the aggregate amount of shares carrying registration rights owned by the underwriters), then the Company shall offer to all Holders who have entities and individuals included Registrable Securities in the registration the right to include additional Registrable Securities such "Holder," as defined in the same proportion used above in determining the underwriter limitationthis sentence.
Appears in 1 contract
Samples: Registration Rights Agreement (Nierenberg Investment Management Co)
Underwriting. If In the registration of which event the Company gives provides the notice ------------ is for a registered public offering involving an underwritingdescribed in Section 7.5(a)(i), the Company shall so advise right of each of the Holders as a part of the written notice given to registration pursuant to this Section 4.2(a) hereof. In such event, the right of any Holder to registration pursuant to Section 4.2 7.5 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided hereintherein. All The Holders proposing to distribute shall and it shall be a condition of their securities participation in any such registration and underwriting that any other shareholders distributing Securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) also enter into an underwriting agreement in customary form (including, without limitation, such indemnity and contribution provisions as the underwriter or underwriters customarily require) with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.27.5, if the managing underwriter determines or representative of the managing underwriter advises the Company in writing that marketing factors require a limitation of on the number of shares to be underwritten, the underwriter may (subject to the allocation priority set forth below) exclude some or all Registrable Securities from such registration and underwritingunderwriting some or all of the Registrable Securities which would otherwise be underwritten pursuant hereto. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any holders of their Registrable Securities through such underwriting ("Non-participating Holders"))requesting registration, and the number of shares of Registrable Securities that may are entitled to be included in the registration and underwriting shall be allocated among in the following manner: first, the holders of the Securities that demanded such Holders in proportion, as nearly as practicable on a pari passu basisregistration shall be entitled to register all of their shares, to the respective amounts extent permitted; and, second, the number of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, shares that all Registrable Securities proposed to may be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from included in the registration and underwriting prior by each of the Holders and the holders of Securities that are also contractually entitled to piggy-back upon such registration shall be reduced, on a pro rata basis (based on the total number of Common Stock equivalents owned by each), by such minimum number of shares as is necessary to comply with any reduction in limitations imposed by the underwriters upon the number of Registrable Securities proposed shares to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationregistered. If any Holder holder of Securities disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom by promptly providing written notice to the Company and the underwriter; provided, however, that no holder may withdraw following the second business day preceding effectiveness of the registration statement. The Any Registrable Securities and/or or other securities so Securities excluded in accordance with this Section 7.5(b) or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If the registration of which the Company PURCHASER gives notice ------------ pursuant to Section 1.3(b)(i) is for a registered public offering involving an underwriting, the Company PURCHASER shall so advise the Holders as a part of the such written notice given pursuant to this Section 4.2(a) hereofnotice. In such event, the right of any Holder to registration pursuant to Section 4.2 1.3(b) hereof shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Additional Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company PURCHASER and the other Holders holders of securities of PURCHASER with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the CompanyPURCHASER. Notwithstanding any other provision of this Section 4.21.3(b) hereof, if the underwriter determines representative of the underwriters advises PURCHASER in writing that marketing factors require a limitation of on the number of shares to be underwritten, then the underwriter representative may (subject to the limitations set forth below) exclude some or all Additional Registrable Securities from such from, or limit the number of Additional Registrable Securities to be included in, the registration and underwriting. The Company PURCHASER shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))securities requesting registration, and the number of shares of Registrable Securities securities that may are entitled to be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basis, first to the respective amounts of Company PURCHASER for securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be being sold for the its own account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction thereafter as set forth in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationSection 1.10 hereof. If any Holder disapproves of person does not agree to the terms of any such underwriting, then such person may elect to withdraw shall be excluded therefrom by written notice to the Company and from PURCHASER or the underwriter. The Any Additional Registrable Securities and/or or other securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, . If shares are so withdrawn from the registration and if by the withdrawal number of such shares of Additional Registrable Securities a greater number of Registrable Securities held by other Holders may to be included in such registration (up to the maximum was previously reduced as a result of any limitation imposed by the underwriters)marketing factors, then the Company PURCHASER shall then offer to all Holders persons who have included Registrable Securities retained the right to include securities in the registration the right to include additional Registrable Securities securities in the same proportion used above registration in determining an aggregate amount equal to the underwriter limitationnumber of shares so withdrawn, with such shares to be allocated among the persons requesting additional inclusion in accordance with Section 1.10 hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Verso Technologies Inc)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof1.3(a)(i). In such event, event the right of any Holder to registration pursuant to this Section 4.2 1.3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.21.3, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may exclude some or all limit to zero the Registrable Securities from to be included in such registration; PROVIDED, that (i) any such limitation shall be applied to the Holders pro rata based upon the number of Registrable Securities held by them, (ii) that the shares of Registrable Securities proposed to be included in such registration shall be subject to exclusion pursuant to Section 3.6 of the Existing Agreement, and underwriting(iii) Other Registrable Securities shall be excluded entirely prior to any exclusion of Registrable Securities. The Company shall so advise all Holders (except those Holders who have indicated holders of securities requesting registration through such underwriting, and subject to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))preceding sentence, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such all Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided. To facilitate the allocation of shares in accordance with the above provisions, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in Company may round the number of Registrable Securities proposed shares allocated to be sold for any Holder to the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationnearest one hundred (100) shares. If any Holder disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The Registrable Securities and/or other Any securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If the registration Initiating Holders intend to distribute their Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, they shall so advise the Company as part of their request made pursuant to this Section 1.5 and the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof1.5(a)(I). In such that event, the right of any Holder to registration pursuant to Section 4.2 1.5 shall be conditioned upon such the Holder's participation in such the underwriting arrangements required by this Section 1.5(b) and the inclusion of such the Holder's Registrable Securities in the underwriting to the extent requested and to the extent provided herein; PROVIDED, HOWEVER, that each Holder shall be required to make only those representations (if any) as would be customary for a holder of a similar percentage of similar securities. All The Company (together with all Holders proposing to distribute their securities through such underwriting) shall, upon request by the managing underwriter selected for such underwriting by a majority in interest of the Initiating Holders (which managing underwriter shall (together be reasonably acceptable to the Company), enter into any reasonable agreement requested by the managing underwriter in connection with the Company and the other Holders distributing their securities through such underwriting) enter into offering including, but not limited to, an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Companymanaging underwriter. Notwithstanding any other provision of this Section 4.21.5, if the managing underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated requested to the Company their decision not to distribute any of their Registrable Securities through participate in such underwriting ("Non-participating Holders"))offering, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all such Holders thereof in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities requested to be registered by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from registration, and such Registrable Securities shall not be transferred in a public distribution prior to ninety (90) days after the effective date of such registration; providedPROVIDED, howeverHOWEVER, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.registration
Appears in 1 contract
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Partnership as a part of their request made pursuant to Section 2 and the Partnership shall include such information in the written notice given pursuant referred to this in Section 4.2(a2(a)(1) hereofabove. In such eventA majority-in-interest of the Initiating Holders shall have the right to select the lead investment banker and manager, and any co-managers (all of which shall be nationally recognized firms), to administer the offering, subject to the Partnership’s approval which will not be unreasonably withheld or delayed. The right of any Holder to registration pursuant to this Section 4.2 2 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority-in-interest of the Initiating Holders and such Holder with respect to such participation and inclusion) to the extent provided herein. All If Holders proposing or Other Partners shall request inclusion in any registration to distribute be effected pursuant to this Section 2, the Initiating Holders shall offer to include the securities of such Holders and Other Partners in the underwriting and may condition such offer on their securities through such underwriting acceptance of the further applicable provisions of this Agreement. The Partnership shall (together with the Company all Holders and the other Holders distributing Other Partners proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Companyunderwriting. Notwithstanding any other provision of this Section 4.22, if the managing underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of on the number of shares to be underwritten, the underwriter may exclude some or all securities being sold for the account of the Partnership and the securities of the Partnership (other than Registrable Securities Securities) held by the Other Partners shall be excluded from such registration to the extent so required by such limitation, and underwriting. The Company if a further limitation of the number of shares is required, the Initiating Holders shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))requesting registration pursuant to this Section 2, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all such Holders (including the Initiating Holders) in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed which they had requested to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction included in the number of Registrable Securities proposed to be sold for the account of other Holderssuch registration. No Registrable Securities or any other securities excluded from the underwriting by reason of the underwriter's ’s marketing limitation shall be included in such registration. If any Holder or Other Partner who has requested inclusion in such registration disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Partnership, the managing underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by registration unless otherwise agreed in accordance with the withdrawal last sentence of such Registrable Securities a greater number the first paragraph of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwritersthis Section 2(b), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Registration Rights Agreement (EverBank Financial Corp)
Underwriting. If the registration Majority Participating Holders intend to distrib ute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to Section 2(a) and the Company shall include such information in the written notice given pursuant referred to this Section 4.2(a) hereofin subsection 2(a)(i). In such event, the The right of any Holder to registration pursuant to Section 4.2 2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Holders participating in such registration, provided, however, that the managing underwriter shall be approved by the Company, which approval shall not be unreasonably withheld. Notwithstanding any other provision of this Section 4.22, if the underwriter determines advises the Majority Participating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company Majority Participating Holders shall so advise all Holders (except those Holders of Registrable Securities who have indicated elected to the Company their decision not to distribute any of their Registrable Securities through participate in such underwriting ("Non-participating Holders"))offering, and the number of shares of Registrable Securities Securi ties that may be included in the registration and underwriting shall be allocated among all such Holders thereof in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to Holders. If any reduction in the number Holder of Registrable Securities proposed disapproves of the terms of the underwriting, he may elect to be sold for withdraw therefrom by written notice to the account of other Company, the underwriter and the Majority Participating Holders. No Any Registrable Securities which are excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by . If the withdrawal of such Registrable Securities a greater underwriter has not limited the number of Registrable Securities held by to be underwritten, the Company may include securities for its own account (or for the account of employees and other Holders may be holders, at the Company's sole discretion) in such registration if the underwriter so agrees and if the number of Registrable Securities which would otherwise have been included in such registration (up to the maximum of any limitation imposed and underwriting will not thereby be limited by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationunderwriter.
Appears in 1 contract
Samples: Registration Rights Agreement (Euroventures Benelux I B V)
Underwriting. If the registration statement of which the Company gives notice ------------ under this Section 2.3 is for a registered public offering involving an underwritingunderwritten offering, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereofRegistrable Securities. In such event, the right of any such Holder to include Registrable Securities in a registration pursuant to this Section 4.2 2.3 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.2Agreement, if the underwriter Company determines in good faith, based on consultation with the underwriter, that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportionallocated, as nearly as practicable on a pari passu basisfirst, to the respective amounts of Company securities owned by such Company; second, to the Holders at on a pro rata basis based on the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the total number of Registrable Securities proposed held by the Holders; and third, to any stockholder of the Company (other than a Holder) on a pro rata basis; provided, however, that no such reduction shall reduce the amount of securities of the selling Holders included in the registration below twenty-five percent (25%) of the total amount of securities included in such registration, unless such offering is a Qualified IPO (as defined in the Company’s Second Amended and Restated Certificate of Incorporation, as the same may be sold for amended from time to time, the account “Restated Certificate”) and such registration does not include shares of any other Holders. No selling stockholders, in which event any or all of the Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall Holders may be excluded in accordance with the immediately preceding clause. In no event will shares of any other selling stockholder be included in such registrationregistration that would reduce the number of shares which may be included by Holders without the written consent of the holders of at least a majority of the Registrable Securities (the “Requisite Majority”). If any Holder disapproves of the terms of any such underwriting, such person 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. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be excluded and withdrawn from such the registration; provided. For any Holder which is a partnership, howeverlimited liability company or corporation, thatthe partners, if by the withdrawal retired partners, members, retired members and stockholders of such Registrable Securities Holder, or the estates and family members of any such partners, retired partners, members and retired members and any trusts for the benefit of any of the foregoing person shall be deemed to be a greater number single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate amount of Registrable Securities held shares carrying registration rights owned by other Holders may be all entities and individuals included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities “Holder,” as defined in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationthis sentence.
Appears in 1 contract
Samples: Investor Rights Agreement (Cidara Therapeutics, Inc.)
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to Section 5(a) and the Company shall include such information in the written notice given pursuant referred to this in Section 4.2(a) hereof5(a). In such event, the The right of any Holder to registration pursuant to Section 4.2 5 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities to be registered in the underwriting to the extent requested (unless otherwise mutually agreed by a majority in interest of the Holders) and to the extent provided herein. All A Holder may elect to include in such underwriting all or a part of the Registrable Securities he holds. The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by a majority in interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 4.25, if the managing underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then, subject to the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The provisions of Section 5(a), the Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such all Holders requesting inclusion in the registration as follows: (A) all securities proposed to be offered by the Company for its own account or for the account of holders of securities other than Registrable Securities, Existing Registrable Securities or AOL Registrable Securities shall be excluded before any Registrable Securities, Existing Registrable Securities or AOL Registrable Securities are excluded; and (B) if, after all securities other than Registrable Securities, Existing Registrable Securities and AOL Registrable Securities have been excluded, additional limitations are required, then the number of Registrable Securities, Existing Registrable Securities and AOL Registrable Securities, if any, included in the registration shall be allocated among all Holders and all holders of Existing Registrable Securities and AOL Registrable Securities requesting inclusion thereof in the registration in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities, Existing Registrable Securities and AOL Registrable Securities proposed to be registered by such Holders or holders at the time of filing the registration statement; provided, -------- however, that all statement subject to the right of the holders of the Existing Registrable Securities proposed under the Investor Rights Agreement, dated April 24, 2000, between the Company and the holders of Existing Registrable Securities to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the have a minimum number of Registrable Securities proposed to be sold for the account of other Holdersshares included in such registration. No Registrable Securities excluded from the underwriting by reason of the managing underwriter's marketing limitation shall be included in such registration. If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterother Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, that if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationlimitation in this Section 5(b). If the registration does not become effective due to the withdrawal of Registrable Securities at the behest of the Holder(s) of such Registrable Securities and the withdrawal of the registration is not at the request or on the advice of the Company or the underwriter nor is the result of a material adverse change in the Company's business, financial condition, results of operations or prospects since the date of the written request of the Initiating Holders pursuant to this Section 5, then either (1) the Holders requesting registration shall reimburse the Company for expenses incurred in complying with the request or (2) if the Holders fail to make such reimbursement, the aborted registration shall be treated as effected for purposes of Section 5(a)(B).
Appears in 1 contract
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to this Section 4.2(a) hereof2.1(a)(i). In such event, unless the Registrable Securities may be registered by the Company on Form S-3, the right of any Holder to include all or any portion of its Registrable Securities in such a registration pursuant to this Section 4.2 2.1 shall be conditioned upon such Holder's ’s participation in such the underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting The Company shall (together with the Company all Holders and the other Holders distributing persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 4.22.1, if the underwriter determines underwriters advise the Initiating Holders in writing that marketing factors require a limitation of on the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to be sold include Registrable Securities and Other Shares in such registration statement based on the pro rata percentage of Registrable Securities and Other Shares held by such Holders, assuming conversion ; (ii) second, to the Other Selling Stockholders/Shareholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other Holders. No Registrable Securities excluded from the underwriting by reason holders or employees of the underwriter's marketing limitation shall be included Company. If a person who has requested inclusion in such registration. If any Holder disapproves of registration as provided above does not agree to the terms of any such underwriting, such person may elect to withdraw shall be excluded therefrom by written notice to from the Company and Company, the underwriterunderwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities and/or or other securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, . If shares are so withdrawn from the registration and if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may shares to be included in such registration (up was previously reduced as a result of marketing factors pursuant to the maximum of any limitation imposed by the underwritersthis Section 2.1(e), then the Company shall then offer to all Holders and Other Selling [Stockholders/Shareholders who have included Registrable Securities retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the same proportion used above registration in determining an aggregate amount equal to the underwriter limitationnumber of shares so withdrawn, with such shares to be allocated among such Holders and other Selling Stockholders/Shareholders requesting additional inclusion, as set forth above.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Propell Technologies Group, Inc.)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof1.3(a). In such event, event the right of any Holder the Holders to registration pursuant to the Section 4.2 1.3 shall be conditioned upon such Holder's the Holders' participation in such underwriting and the inclusion of such Holder's the Holders' Registrable Securities in the underwriting to the extent provided herein. All The Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their its securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the CompanyCompany and shall use their best efforts to arrange for all documents and opinions required to be delivered thereunder in respect of their participation as selling shareholders to be delivered. Notwithstanding any other provision of this Section 4.21.3, if the managing underwriter determines that marketing factors require a limitation of on the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall include in the underwriting only that number of such securities, including Registrable Securities, which the managing underwriter believes will not jeopardize the success of the offering (the securities so advise included to be apportioned as follows: first all securities which stockholders other than the Holders (except those Holders who have indicated seek to include in the offering shall be excluded from the offering to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and extent limitation on the number of shares included in the underwriting is required, then the number of Registrable Securities shares held by Holders that may be included in the registration and underwriting shall be allocated apportioned pro rata among such the selling Holders in proportion, as nearly as practicable on a pari passu basis, according to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number total amount of Registrable Securities proposed entitled to be sold for included therein owned by each selling Holder or in such other apportions as shall be mutually agreed to by such selling Holders) but in no event shall the account amount of other Holders. No Registrable Securities excluded from the underwriting by reason securities of the underwriter's marketing limitation shall selling Holders included in the offering be reduced below 25% of the total amount of securities included in such registrationoffering, unless such offering is the initial public offering of the Company's securities in which case the selling Holders may be excluded if the managing underwriter makes the determination described above and no securities other than those of the Company are included. If any Holder of the Holders or any officer or director disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom by written notice to the Company and the underwriter. The Any Registrable Securities and/or or other securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.,
Appears in 1 contract
Samples: Registration Rights Agreement (TSW International Inc)
Underwriting. If the registration of statement under which the Company gives notice ------------ under this Section 2.4 is for a registered public offering involving an underwritingunderwritten offering, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereofRegistrable Securities and Put Registrable Securities. In such event, the right of any such Holder to be included in a registration pursuant to this Section 4.2 2.4 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities and Put Registrable Securities in the underwriting to the extent provided herein. If requested by the underwriters for any underwritten offering of Registrable Securities or Put Registrable Securities pursuant to a registration requested under Section 2.2 or 2.3, the Company shall enter into an underwriting agreement with such underwriters for such underwritten offering, which agreement will contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including indemnification and contribution provisions substantially to the effect and to the extent provided in Section 2.10 hereof, and agreements as to the provision of opinions of counsel and accountants' letters. Any such underwriters shall be selected by the Holders of a majority of the Registrable Securities and Put Registrable Securities to be sold pursuant to the registration requested under Section 2.2 or 2.3 and such underwriters shall be reasonably acceptable to the Company. All Holders proposing to distribute their securities Registrable Securities or Put Registrable Securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) also enter into an such underwriting agreement agreement, which shall also contain such representations and warranties by such Holders and such other terms and provisions as are customarily contained in customary form underwriting agreements with respect to secondary distributions, including indemnification and contribution provisions substantially to the effect and to the extent provided in Section 2.10 hereof, with the underwriter or underwriters selected for such underwriting by the CompanyCompany (and reasonably acceptable to the Holders proposing to distribute their Registrable Securities or Put Registrable Securities through such underwriting). Notwithstanding any other provision of this Section 4.2the Agreement, if the underwriter determines in good faith that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportionallocated, as nearly as practicable on a pari passu basisfirst, to the respective amounts Company; second, to the Holders on a pro rata basis based on the total number of Registrable Securities and Put Registrable Securities held by the Holders; and third, to any stockholder of the Company (other than a Holder) on a pro rata basis. No such reduction shall (i) reduce the securities owned being offered by such Holders at the time of filing Company for its own account to be included in the registration statement; providedand underwriting, -------- however, or (ii) reduce the amount of securities of the selling Holders included in the registration below thirty percent (30%) of the total amount of securities included in such registration. In no event will shares of any other selling stockholder be included in such registration that all would reduce the number of shares that may be included by Holders without the written consent of Holders of not less than a majority of the Registrable Securities and Put Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationoffering. If any Holder disapproves of the terms of any such underwriting, such person 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. The Any Registrable Securities and/or other securities so or Put Registrable Securities excluded or withdrawn from such underwriting shall also be excluded and withdrawn from such the registration; provided. For any Holder that is a partnership or corporation, howeverthe partners, that, if by the withdrawal retired partners and stockholders of such Registrable Securities 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 person shall be deemed to be a greater number single "Holder", and any pro rata reduction with respect to such "Holder" shall be based upon the aggregate amount of Registrable Securities held shares carrying registration rights owned by other Holders may be all entities and individuals included in such registration (up to the maximum of any limitation imposed by the underwriters)"Holder", then the Company shall offer to all Holders who have included Registrable Securities as defined in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationthis sentence.
Appears in 1 contract
Underwriting. If the registration Initiating Holders intend to distribute their Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, they shall so advise the Company as part of their request made pursuant to this Section 1.5 and the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof1.5(a)(i). In such that event, the right of any Holder to registration pursuant to Section 4.2 1.5 shall be conditioned upon such the Holder's participation in such the underwriting arrangements required by this Section 1.5(b) and the inclusion of such the Holder's Registrable Securities in the underwriting to the extent requested and to the extent provided herein; PROVIDED, HOWEVER, that each Holder shall be required to make only those representations (if any) as would be customary for a holder of a similar percentage of similar securities. All The Company (together with all Holders proposing to distribute their securities through such underwriting) shall, upon request by the managing underwriter selected for such underwriting by a majority in interest of the Initiating Holders (which managing underwriter shall (together be reasonably acceptable to the Company), enter into any reasonable agreement requested by the managing underwriter in connection with the Company and the other Holders distributing their securities through such underwriting) enter into offering including, but not limited to, an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Companymanaging underwriter. Notwithstanding any other provision of this Section 4.21.5, if the managing underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated requested to the Company their decision not to distribute any of their Registrable Securities through participate in such underwriting ("Non-participating Holders"))offering, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all such Holders thereof in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities requested to be registered by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from registration, and such Registrable Securities shall not be transferred in a public distribution prior to ninety (90) days after the effective date of such registration; providedPROVIDED, howeverHOWEVER, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationlimitation in this Section 1.5(b).
Appears in 1 contract
Samples: Registration Rights Agreement (Graphix Zone Inc /Ca/)
Underwriting. If the registration of which the Company gives notice ------------ pursuant to Section 5.01 is for effected through a registered firm commitment underwritten public offering involving an underwritingat the election of the Initiating Holders, the underwriters selected must be reasonably acceptable to the Initiating Holders. The Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a5.01(a)(i) hereof. In such event, that the right of any Holder to registration pursuant to Section 4.2 5.01 shall be conditioned upon such Holder's participation in such the underwriting arrangements required by this Section 5.01, and the inclusion of such Holder's Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. All The Company shall, together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) , enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by reasonably acceptable to the CompanyCompany and a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 4.25.01, if the managing underwriter determines advises the Company in writing that marketing factors require a limitation of the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated requesting to be included in the Company their decision not to distribute any of their Registrable Securities through such registration and underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such all Holders requesting to be included in the registration and underwriting in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders them at the time of filing the registration statement; , provided, -------- however, that all Registrable Securities proposed to be sold for in the account event of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in such limitation on the number of shares to be underwritten, no shares of stock to be registered for sale by the Company shall be included unless all shares of Registrable Securities proposed requested by the Purchaser or any Holder to be sold for the account of other Holdersincluded in such underwriting are so included. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Magainin Pharmaceuticals Inc)
Underwriting. If the registration of with respect to which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders Holder as a part of the written notice given pursuant to this Section 4.2(a) hereofSECTION 4(A). In such event, the right of any the Holder to registration pursuant to this Section 4.2 shall be conditioned upon such the Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (The Holder shall, together with the Company and the other Holders distributing their securities through such underwriting) Company, enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.2, if If the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such person the Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The Registrable Securities and/or other Any securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided. Notwithstanding any provision contained herein to the contrary, however, if the managing underwriter or underwriters of the registration in which the Company gives notice under this SECTION 4 shall advise the Company in writing that, if by in its opinion, the withdrawal of such Registrable Securities a greater number total amount of Registrable Securities held that the Holder(s) request to include in such registration, together with any other securities with similar incidental or piggyback registration rights (collectively, the "REQUESTED SECURITIES") would materially reduce the amount of securities to be offered by other Holders may the Company or interfere in any material respect with the offer of the Company's securities, then the amount and kind of Requested Securities to be offered for the accounts of any Holder whose shares of Requested Securities were requested to be included in such registration (up shall be reduced pro rata with respect to each such Holder to the maximum extent necessary to reduce the total amount of any limitation imposed securities to be included in such registration to the amount recommended by such managing underwriter or underwriters; PROVIDED, HOWEVER, that such reduction shall not include the following: (i) if the registration initially occurs at the insistence of the Company, shares to be issued by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in Company; or (ii) if the registration occurs due to a demand registration right, including the right to include additional Registrable Securities Demand Registration provided in SECTION 2, shares of the same proportion used above in determining the underwriter limitationHolder(s) making that demand.
Appears in 1 contract
Underwriting. If the registration of which the Company TSII gives notice ------------ is for a registered public offering involving an underwriting, the Company TSII shall so advise each of the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof4(i)(A). In such event, the right of any Holder each of the Holders to registration pursuant to this Section 4.2 4 shall be conditioned upon such Holder's Holders' participation in such underwriting and the inclusion of such Holder's Holders' Registrable Securities in the underwriting to the extent provided herein. All The Holders proposing whose shares are to distribute their securities through be included in such underwriting registration shall (together with the Company TSII and the other Holders Other Stockholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the CompanyTSII. Notwithstanding any other provision of this Section 4.24, if the underwriter representative determines that marketing factors require a limitation of on the number of shares to be underwritten, the underwriter representative may exclude some or all (subject to the allocation priority set forth below) limit the number of Registrable Securities from such to be included in the registration and underwriting. The Company TSII shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any holders of their Registrable Securities through such underwriting ("Non-participating Holders"))securities requesting registration, and the number of shares of Registrable Securities securities that may are entitled to be included in the registration and underwriting shall be allocated among in the following manner: The securities of TSII held by officers, directors and Other Stockholders of TSII (other than securities held by holders who by contractual right initiated the demand for such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees"Demanding Holders")) shall be excluded from such registration and underwriting to the extent required by such limitation, and, if a limitation on the number of shares is still required, the number of shares that may be included in the registration and underwriting prior to any reduction in by each of the Holders and Demanding Holders shall be reduced, on a pro rata basis (based on the number of Registrable Securities shares proposed to be sold for the account by such Holder or Demanding Holder), by such minimum number of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in shares as is necessary to comply with such registrationlimitation. If any Holder of the Holders or Demanding Holders or any officer, director or Other Stockholder disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom there from by written notice to the Company TSII and the underwriter. The Any Registrable Securities and/or or other securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Registration Rights Agreement (Travel Services International Inc)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof1.3(a)(i). In such event, event the right of any Holder to registration pursuant to Section 4.2 1.3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.21.3, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may exclude some or all limit the Registrable Securities from to be included in such registration and underwritingregistration. The In that case, the Company shall so advise all Holders (except those Holders who have indicated to the Company and any other holders distributing their decision not to distribute any of their Registrable Securities securities through such underwriting ("Non-participating Holders")), and the number of securities that may be included in the registration and underwriting shall be allocated (i) first up to that number of shares of Common Stock constituting the Hunt Stock at such time up to that dollar amount secured by the plxxxx of Hunt Stock at such time (the "Hunt Stock Amount"), provided that txx xanaging underwriter determxxxx that such priority with respect to the Hunt Stock is compatible with the success of the offering, (ii) sexxxx, to the Company, and (iii) third among all Holders (other than Hunt) who are entitled to include and have requested the inclusion xx their Registrable Securities in such offering pursuant to this Section 1.3 on a pro rata basis in proportion to the respective number of Registrable Securities so requested to be included by such Holders, in priority to the inclusion of any other securities that are proposed to be sold in such offering by any other Persons (other than the Company). If all of the Registrable Securities requested for inclusion in such registration and underwriting by the Holders as aforesaid have been so included, the remaining number of securities, if any, that may be included in the registration and underwriting shall be allocated among any other holders distributing securities in such Holders offering (provided that such other holders have contractual rights to participate in proportionsuch registration and such rights have been granted pursuant to Section 1.13 of this Agreement). Anything herein to the contrary notwithstanding, subject to the sale of Hunt Stock, as nearly as practicable on a pari passu basisprovided in clause (i) above, to the respective amounts (x) in no event shall xxx aggregate amount of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed of the Holders (other than Hunt) included in the offering be reduced below forty percent (40%) xx the total amount of securities included in such offering, unless the Holders of sixty-six and two-thirds percent (66-2/3%) of the Registrable Securities (excluding the Hunt Stock) consent in writing to such a reduction and (y) the numxxx of Registrable Securities (excluding the Hunt Stock) included in any registration shall not be reduced unlexx xhere are first excluded all other securities (other than securities to be sold offered for the account of ------- the Non-participating Holders (or their transfereesCompany) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such the registration. If any Holder disapproves of the terms of any such underwriting, such person Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Securityholders Agreement (Horizon Medical Products Inc)
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to Section 2(a) and the Company shall include such information in the written notice given pursuant referred to this Section 4.2(a) hereofin subsection 2(a)(i). In such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within 20 days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice. The right of any Holder to registration pursuant to Section 4.2 2 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 4.22, if the underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company Initiating Holders shall so advise all Holders (except those Holders of Registrable Securities who have indicated elected to the Company their decision not to distribute any of their Registrable Securities through participate in such underwriting ("Non-participating Holders"))offering, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders requesting registration in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person he may elect to withdraw therefrom by written notice to the Company Company, the underwriter and the underwriterInitiating Holders. The Any Registrable Securities and/or other securities so which are excluded from the underwriting by reason of the underwriter’s marketing limitation or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by . If the withdrawal of such Registrable Securities a greater underwriter has not limited the number of Registrable Securities held by to be underwritten, the Company, employees of the Company and other Holders holders of the Company’s Common Stock may be include securities for its (or their) own account in such registration if the underwriter so agrees and if the number of Registrable Securities which would otherwise have been included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationand underwriting will not thereby be limited.
Appears in 1 contract
Underwriting. If the registration of which the Company Corporation gives notice ------------ is for a registered public offering involving an underwriting, the Company Corporation shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof1.3(b)(i)(A). In such event, event the right of any Holder to registration pursuant to this Section 4.2 1.3(b) shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company Corporation and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the CompanyCorporation, but subject to the reasonable approval of Holders holding a majority of the Registrable Securities to be included in such registration. Notwithstanding any other provision of this Section 4.21.3(b), if the managing underwriter determines in its good faith judgment that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may exclude some or all limit the Registrable Securities from to be included in such registration and underwritingregistration. The Company Corporation shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities securities that may be included in the registration and underwriting (other than in behalf of the Corporation) shall first be allocated among such all Holders in proportion, as nearly as practicable pro rata on a pari passu basis, to the respective basis of the amounts of Company securities owned Registrable Securities held by such Holders at the time of filing of the registration statement; provided, -------- however, that all unless otherwise agreed upon by the Holders of a majority of the Registrable Securities proposed desiring to participate in the offering, in no event shall the amount of Registrable Securities of the Holders included in the offering be sold for reduced below thirty percent (30%) of the account total amount of ------- securities included in such offering. No securities of the Non-participating Corporation held by parties other than the Holders (or their transferees) the Corporation shall be excluded from the included in any registration and underwriting prior to any reduction in which this section applies if the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be that would otherwise have been included in such registrationregistration and underwriting will thereby be limited. If any Holder disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom by written notice to the Company Corporation and the managing underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof4.2(a)(i). In such event, event the right of any Holder to registration pursuant to Section 4.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (shall, together with the Company and the other Holders distributing their securities through such underwriting) Other Holders, enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.2, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may exclude some or all limit the number of shares of Registrable Securities from to be included in such registration without requiring any limitation in the number of shares to be registered on behalf of the Company, provided that if such underwriting is other than an initial public offering the number of shares of Registrable Securities held by Holders and underwritingOther Holders to be included in such registration shall not be limited to less than twenty-five percent (25%) of the total number of shares to be included in such registration. The Company shall so advise all Holders (except those and Other Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting by all Holders and Other Holders shall be allocated among such Holders in proportionthem, as nearly as practicable on a pari passu basispracticable, first, to the Company (or, if applicable, to the holders for whose account the Company is registering the securities), second, among the Holders of Registrable Securities in proportion to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing of the registration statement; provided, -------- howeverand, that all Registrable Securities proposed third, among the Other Holders in proportion to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities shares proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any registration by such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registrationOther Holders; provided, however, thatthat at all times, such allocation shall be subject to the twenty-five percent (25%) threshold set forth in the preceding sentence if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.and underwriting is
Appears in 1 contract
Samples: Stockholder Rights Agreement (Argonaut Technologies Inc)
Underwriting. If the registration of which the Company RQI gives notice ------------ is for a registered public offering involving an underwriting, the Company RQI shall so advise each of the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof4(i)(A). In such event, the right of any Holder each of the Holders to registration pursuant to this Section 4.2 4 shall be conditioned upon such Holder's Holders' participation in such underwriting and the inclusion of such Holder's Holders' Registrable Securities in the underwriting to the extent provided herein. All The Holders proposing whose shares are to distribute their securities through be included in such underwriting registration shall (together with the Company RQI and the other Holders Other Stockholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the CompanyRQI. Notwithstanding any other provision of this Section 4.24, if the underwriter representative determines that marketing factors require a limitation of on the number of shares to be underwritten, the underwriter representative may exclude some or all (subject to the allocation priority set forth below) limit the number of Registrable Securities from such to be included in the registration and underwriting. The Company RQI shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any holders of their Registrable Securities through such underwriting ("Non-participating Holders"))securities requesting registration, and the number of shares of Registrable Securities securities that may are entitled to be included in the registration and underwriting shall be allocated among in the following manner: The securities of RQI held by officers, directors and Other Stockholders of RQI (other than securities held by holders who by contractual right initiated the demand for such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees"Demanding Holders")) shall be excluded from such registration and underwriting to the extent required by such limitation, and, if a limitation on the number of shares is still required, the number of shares that may be included in the registration and underwriting prior to any reduction in by each of the Holders and Demanding Holders shall be reduced, on a pro rata basis (based on the number of Registrable Securities shares proposed to be sold for the account by such Holder or Demanding Holder), by such minimum number of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in shares as is necessary to comply with such registrationlimitation. If any Holder of the Holders or Demanding Holders or any officer, director or Other Stockholder disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom there from by written notice to the Company RQI and the underwriter. The Any Registrable Securities and/or or other securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Restriction and Registration Rights Agreement (Resortquest International Inc)
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to this paragraph 1.2 and the Company shall include such information in the written notice given pursuant referred to this Section 4.2(ain subparagraph 1.2
(a) hereof(i). The underwriter shall be selected by the holders of a majority of the Registrable Securities proposed to be sold in the offering, which underwriter shall be reasonably acceptable to the Company. In such event, if so requested in writing by the Company, the Holders shall negotiate with the underwriter so selected with regard to the underwriting of such requested registration. The right of any Holder to registration pursuant to Section 4.2 paragraph 1.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Companyas above provided. Notwithstanding any other provision of this Section 4.2paragraph 1.2, if the underwriter determines advises the Initiating Holders and the Company in writing that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such all Holders requesting inclusion in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held (or entitled to be held upon conversion) by such Holders at the time of filing the registration statement; provided, -------- however, that no Registrable Securities held by any Initiating Holders shall be so excluded until all Registrable Securities proposed to be sold for the account of ------- the Non-participating held by other Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holdershave been excluded. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the underwriter and the underwriterInitiating Holders. The Registrable Securities and/or or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationlimitation in this paragraph 1.2.
Appears in 1 contract
Underwriting. If the registration of which the Company ------------ gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof3.2(a)(i). In such event, event the right of any Holder to registration pursuant to Section 4.2 3.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwritingCompany) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.23.2, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may exclude some limit the Registrable Securities and other securities to be distributed through such underwriting, but in no event shall (i) any shares being sold by a stockholder exercising a demand registration right similar to that granted in Section 3.1 be excluded from such offering, (ii) the number of Registrable Securities to be included in such offering be less than 25% of the total number of securities to be included in such offering, unless such offering is the IPO and such registration does not include shares of any other selling stockholder in which event any or all of the Registrable Securities of the Holders may be excluded from such registration and underwritingoffering or (iii) the number of Registrable Securities to be included in such offering be reduced below the number of Registrable Securities requested to be registered pursuant to Section 3.2(a) above in order for shares of other selling stockholders to be included, unless Holders of at least two thirds (2/3) of the Registrable Securities proposed to be sold in such offering agree to include the shares held by such selling stockholders. The Company shall so advise all Holders (except those Holders who have indicated to the Company distributing their decision not to distribute any of their Registrable Securities securities through such underwriting ("Non-participating Holders"))of such limitation, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such all Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided, -------- however, that all statement or in such other manner as shall be agreed to by the Company and Holders of a majority of the Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company may round the number of shares allocated to any Holder or holder to the nearest 100 shares. If any Holder or holder disapproves of the terms of any such underwriting, such person Holder or holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The Registrable Securities and/or other Any securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of the written notice given their request made pursuant to this Section 4.2(a) hereof3 and the Company shall include such information in the written notice referred to in Section 3(a). In such event, the underwriter shall be selected by the Majority in Interest, and shall be reasonably acceptable to the Company. The right of any Holder to registration pursuant to this Section 4.2 3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by the Majority in Interest and such Holder) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Companyunderwriters. Notwithstanding any other provision of this Section 4.23, if the underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company Initiating Holders shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting (which shall be determined in good faith by the managing underwriter) shall be allocated among such all Holders thereof in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed and requested to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holdersincluded by them. No Registrable Securities excluded from the underwriting by reason of the managing underwriter's marketing limitation shall be included in such registration. If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person Holder may elect to withdraw therefrom by written notice to the Company Company, the underwriter and the underwriterInitiating Holders. The Any Registrable Securities and/or other securities so which are excluded from the underwriting by reason of the underwriter's marketing limitation or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Registration Rights Agreement (China Agricorp, Inc)
Underwriting. If the registration of which the Company SSI gives notice ------------ is for a registered public offering involving an underwriting, the Company SSI shall so advise the Holders LSI Logic as a part of the written notice given pursuant to this Section 4.2(a) hereof1.2(a)(i). In such event, the right of any Holder LSI Logic to registration pursuant to this Section 4.2 1.2 shall be conditioned upon such HolderLSI Logic's participation in such underwriting and the inclusion of such HolderLSI Logic's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing If LSI Logic proposes to distribute their its securities through such underwriting it shall (together with the Company and the other Holders distributing their securities through such underwritingSSI) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the CompanySSI, subject to LSI Logic's written consent, which shall not be unreasonably withheld. Notwithstanding any other provision of this Section 4.21.2, if the underwriter determines underwriters advise SSI in writing that marketing factors require a limitation of on the number of shares to be underwritten, the underwriter underwriters may exclude some or all (subject to the limitations set forth below) limit the number of Registrable Securities from such to be included in the registration and underwriting. The Company SSI shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))LSI Logic, and the number of shares of Registrable Securities securities that may are entitled to be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basisfollows: (i) first, to the respective amounts of Company SSI for securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be being sold for the account of ------- the Non-participating Holders its own account, and (or their transfereesii) shall be excluded from the registration second, to LSI Logic; and underwriting prior (iii) third, to any reduction in the number other holders of Registrable Securities proposed to be sold for the account of other HoldersSSI securities. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included If a person who has requested inclusion in such registration. If any Holder disapproves of registration as provided above does not agree to the terms of any such underwriting, such person may elect to withdraw shall be excluded therefrom by written notice to the Company and from SSI or the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting excluded shall also be withdrawn from such registration; provided, however, that, . If shares are so withdrawn from the registration and if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may shares to be included in such registration (up was previously reduced as a result of marketing factors pursuant to the maximum of any limitation imposed by the underwritersSection 1.2(b), then the Company SSI shall offer to all Holders who have included Registrable Securities in the registration LSI Logic the right to include additional Registrable Securities in the same proportion used above registration in determining an aggregate amount equal to the underwriter limitationnumber of shares so withdrawn, with such shares to be allocated among LSI Logic or such other persons requesting additional inclusion, in the manner set forth above.
Appears in 1 contract
Samples: Investor Rights Agreement (Lsi Logic Storage Systems Inc)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered an underwritten public offering involving an underwritingregistered under the Securities Act, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof3(a)(i). In such event, the right of any Holder to registration register securities pursuant to this Section 4.2 3 shall be conditioned upon such Holder's participation in such underwriting prior to the earlier of (x) the printing of any preliminary prospectus relating to such registration and (y) the date requested by the Company, and the inclusion of such Holderperson's Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the any other Holders holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.23, if at any time prior to the execution of the underwriting agreement, the managing underwriter determines advises the Company in writing that marketing factors require in order to sell the Registrable Securities requested to be included in the registration statement in the underwritten offering within a price range acceptable to the Company there must be a limitation of on the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated requested to include securities in such underwriting and the Company their decision not shall include in such registration, (i) first, all of the securities the Company proposes to distribute any of their sell for its own account, (ii) thereafter, the Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may requested to be included in such registration pursuant to Section 3(a), allocated, if less can be included than requested, pro rata among the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable based on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed owned by such Holder, and (iii) third (but only if all of the Registrable Securities requested to be sold for included by each Holder thereof in the account registration are included), the other securities requested to be included in such registration, allocated pro rata based on the number of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall securities requested to be included in such registration. If any Holder or other holder disapproves of the terms of any such underwriting, such person it may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up managing underwriter prior to the maximum earlier of (x) the printing of any limitation imposed by the underwriters), then the Company shall offer preliminary prospectus relating to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.such
Appears in 1 contract
Samples: Registration Rights Agreement (Inrange Technologies Corp)
Underwriting. If In the event that a registration of which the Company gives notice ------------ pursuant to this Section 4.1 is for a registered public offering involving an underwriting, the Initiating Holders will so advise the Company as part of the written request given by such Initiating Holders pursuant to Section 4.1(a), and the Company shall so in turn advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof4.1(a)(i). In such event, the right of any Holder to registration pursuant to this Section 4.2 4.1 shall be conditioned upon such Holder's participation in such the underwriting arrangements required by this Section 4.1, and the inclusion of such Holder's Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company, but subject to the reasonable approval of a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 4.24.1, if the managing underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated first among such all Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; providedPROVIDED, -------- howeverHOWEVER, that all Registrable Securities proposed to be sold for no stock other than capital stock owned by the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the Company is included in such registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holdersstatement. No Registrable Securities or other securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any holder to the nearest one hundred (100) shares. If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If the registration of which the Company gives ------------ notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof1.3(a)(i). In such event, event the right of any Holder to registration pursuant to Section 4.2 1.3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company, but subject to the reasonable approval of Holders holding more than a majority of the Registrable Securities to be included in such registration. Notwithstanding any other provision of this Section 4.21.3, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may exclude some or all limit the Registrable Securities from to be included in such registration and underwritingregistration. The Company shall so advise all Holders (except those Holders who have indicated to the Company and other holders distributing their decision not to distribute any of their Registrable Securities securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities securities that may be included in the registration and underwriting (other than in behalf of the Company) shall be allocated among all Holders and such Holders other holders (provided that such other holders have contractual rights to participate in such registration which are not subordinate to the Holders) in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company Registrable Securities or other securities owned requested to be included in such registration by such Holders at the time of filing the registration statementand such other holders; provided, -------- however, that all in no event shall the amount of Registrable Securities of the 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 of the Company's securities in which case the Holders may be excluded entirely if the underwriters make the determination described above or the Holders holding a majority of the Registrable Securities consent in writing to such a reduction. In no event will shares of any other selling shareholder be included in such registration which would reduce the number of shares which may be included by Holders without the written consent of Holders of not less than sixty-six and two-thirds percent (66-2/3%) of the Registrable Securities proposed to be sold for in the account offering. To facilitate the allocation of ------- shares in accordance with the Non-participating Holders (or their transferees) shall be excluded from above provisions, the registration and underwriting prior to any reduction in Company may round the number of Registrable Securities proposed shares allocated to be sold for any Holder or holder to the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationnearest 100 shares. If any Holder or holder disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The Registrable Securities and/or other Any securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by and shall not be transferred in a public distribution prior to ninety (90) days after the withdrawal effective date of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration statement relating thereto, or such other shorter period of time as the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationunderwriters may require.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof5.1(a)(i). In such event, the right of any Holder to registration pursuant to Section 4.2 5.1 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting shall be limited to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.25.1, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may limit or exclude some or all the Registrable Securities from to be included in such registration and underwritingprior to limiting or excluding the shares held by other holders of registration rights granted by the Company. The Company shall so advise all Holders (except those Holders who have indicated requesting to be included in the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))registration and underwriting, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated allocated, first, among all holders of Series E Registrable securities, as such Holders term is defined in that Fourth Amended and Restated Rights Agreement dated as of April 6, 1998 by and among the Company and the individuals and entities set forth on Exhibit A thereto, , requesting to be included in the registration and underwriting in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders them at the time of filing the registration statement; provided, -------- howeverand second, that if any shares shall be left over, among all Registrable Securities proposed other holders of registration rights granted by the Company requesting to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from included in the registration and underwriting prior and all the Holders requesting to any reduction be included in the number registration and underwriting in proportion, as nearly as practicable, to the respective amounts of Registrable Securities proposed to be sold for held by them at the account time of other Holders. No Registrable Securities excluded from filing the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationregistration statement. If any Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and Company. Notwithstanding the underwriter. The foregoing, the amount of any Registrable Securities and/or other securities so withdrawn from such entitled to inclusion in any registration and underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer be limited or cut back such that the Company is able to all Holders who have included Registrable Securities register and issue not less than seventy (70%) percent of the total number of shares registered and issued in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationsuch offering.
Appears in 1 contract
Samples: Registration Rights Agreement (Simplex Solutions Inc)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof3.1.1. In such event, event the right of any Holder to registration pursuant to Section 4.2 3 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.23, if the managing underwriter determines advises the Company in writing that marketing factors require a limitation of the number of shares to be underwritten, then the managing underwriter may exclude some or all limit to whatever extent necessary (including (i) excluding the Registrable Securities from such registration the Company’s initial public offering and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to ii) limiting the Company their decision not to distribute any of their Registrable Securities through to 30%, but not less than 30%, of any other such underwriting ("Non-participating Holders")), and registration) the number of shares of Registrable Securities that may to be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in reducing the number of Registrable Securities proposed included on behalf of the Founders, to be sold for the account of other Holders. No extent the Founders hold Registrable Securities excluded from with respect to such registration on a pro-rata basis based on the underwriting total number of Registrable Securities entitled to registration held by reason each Founder, and then by reducing the number of Registrable Securities included on behalf of the underwriter's marketing limitation shall Holders, on a pro-rata basis based on the total number of Registrable Securities entitled to registration held by each Holder. Notwithstanding the foregoing, the Company will not include any securities held by securityholders other than the Holders or their assignees in any registration unless all the Registrable Securities requested to be included in such registrationregistration are so registered. The Company shall advise all Holders of Registrable Securities which would otherwise be registered and underwritten pursuant hereto of any such limitations. If any Holder disapproves of the terms of any such underwriting, such person it may elect to withdraw therefrom by written notice to the Company and the underwriter. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may not be included in such registration (up registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationnearest one hundred (100) shares.
Appears in 1 contract
Underwriting. If the registration of which the Company TSII gives notice ------------ is for a registered public offering involving an underwriting, the Company TSII shall so advise each of the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof3(i)(A). In such event, the right of any Holder each of the Holders to registration pursuant to this Section 4.2 3 shall be conditioned upon such Holder's Holders' participation in such underwriting and the inclusion of such Holder's Holders' Registrable Securities in the underwriting to the extent provided herein. All The Holders proposing whose shares are to distribute their securities through be included in such underwriting registration shall (together with the Company TSII and the other Holders Other Stockholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the CompanyTSII. Notwithstanding any other provision of this Section 4.23, if the underwriter representative determines that marketing factors require a limitation of on the number of shares to be underwritten, the underwriter representative may exclude some or all (subject to the allocation priority set forth below) limit the number of Registrable Securities from such to be included in the registration and underwriting. The Company TSII shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any holders of their Registrable Securities through such underwriting ("Non-participating Holders"))securities requesting registration, and the number of shares of Registrable Securities securities that may are entitled to be included in the registration and underwriting shall be allocated among in the following manner: The securities of TSII held by officers, directors and Other Stockholders of TSII (other than securities held by holders who by contractual right initiated the demand for such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees"Demanding Holders")) shall be excluded from such registration and underwriting to the extent required by such limitation, and, if a limitation on the number of shares is still required, the number of shares that may be included in the registration and underwriting prior to any reduction in by each of the Holders and Demanding Holders shall be reduced, on a pro rata basis (based on the number of Registrable Securities shares proposed to be sold for the account by such Holder or Demanding Holder), by such minimum number of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in shares as is necessary to comply with such registrationlimitation. If any Holder of the Holders or Demanding Holders or any officer, director or Other Stockholder disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom there from by written notice to the Company TSII and the underwriter. The Any Registrable Securities and/or or other securities so excluded or withdrawn 5 from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Registration Rights Agreement (Travel Services International Inc)
Underwriting. If the registration of which the Company gives ------------ notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof4.3(a)(1). In such event, the right of any Holder to registration pursuant to this Section 4.2 4.3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.24.3, if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or Company shall include in such registration (i) first, all of the securities to be included in such registration for the Company's own account, and (ii) second, up to the full number of Registrable Securities from and other securities of the Company sought to be included in such registration by Holders and other security holders to whom the Company has granted registration rights ("Other Holders"); and, if less than the full number of such securities is to be included, the number to be included shall be allocated pro rata on the basis of the total number of Registrable Securities and other securities sought to be included in such registration by the Holders and Other Holders; provided, however, that in no event shall the securities -------- ------- being offered by the Holders be less than thirty percent (30%) of the total number of securities requested by the Holders to be included in such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through which would otherwise be registered and underwritten pursuant hereto of any such underwriting ("Non-participating Holders"))limitations, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such person Holder may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Cooperation Agreement (MSH Entertainment Corp /Ca/)
Underwriting. If the registration of statement under which the Company gives notice ------------ under this Section 2.3 is for a registered public offering involving an underwritingunderwritten offering, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereofRegistrable Securities. In such event, the right of any such Holder to include Registrable Securities in a registration pursuant to this Section 4.2 2.3 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the CompanyCompany reflecting the terms of the underwriting as agreed upon between the Company and such underwriters. Notwithstanding any other provision of this Section 4.2Agreement, if the underwriter determines in good faith that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportionallocated, as nearly as practicable on a pari passu basisfirst, to the respective amounts Company; second, to the Holders on a pro rata basis based on the total number of Company securities owned Registrable Securities held by such Holders at Holders; and third, to any stockholder of the time of filing the registration statementCompany (other than a Holder) on a pro rata basis; provided, -------- however, that all no such reduction shall reduce the amount of securities of the selling Holders included in the registration below thirty-three percent (33%) of the total amount of securities included in such registration, unless such registration relates to the Initial Offering, in which case the selling Holders may be excluded further if the underwriters make the determination described above and no other stockholders’ securities are included in such registration. In no event will shares of any other selling stockholder be included in such registration without the written consent of those Holders of a majority of the Registrable Securities held by the Investors and proposed to be sold for in the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in offering if such inclusion would reduce the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall shares that may be included in such registrationby Holders. If any Holder disapproves of the terms of any such underwriting, such person 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. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be excluded and withdrawn from such the registration; provided. For any Holder which is a partnership, howeverlimited liability company or corporation, thatthe partners, if by the withdrawal retired partners, members, retired members and stockholders of such Registrable Securities Holder, or the estates and family members of any such partners, retired partners, members and retired members and any trusts for the benefit of any of the foregoing person shall be deemed to be a greater number single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate amount of Registrable Securities held shares carrying registration rights owned by other Holders may be all entities and individuals included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities “Holder,” as defined in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationthis sentence.
Appears in 1 contract
Underwriting. If In the event that a registration of which the Company gives notice ------------ pursuant to Section 8.5 is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a8.5(a)(i) hereof(provided that it is understood that in no event shall the Company be obligated to find any such underwriter). In such event, the right of any Holder to registration pursuant to Section 4.2 8.5 shall be conditioned upon such Holder's participation in such the underwriting arrangements required by this Section 8.5, and the inclusion of such Holder's Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, but subject to the Company's reasonable approval. Notwithstanding any other provision of this Section 4.28.5, if the managing underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any holders of their Registrable Securities through such underwriting ("Non-participating Holders")), and holders of Other Registrable Securities and the number of shares of Registrable Securities and Other Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders all holders thereof in proportion, as nearly as practicable on a pari passu basispracticable, to the respective aggregate amounts of Company securities owned Registrable Securities and Other Registrable Securities held by such Holders holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any holder to the nearest 100 shares. If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of and such Registrable Securities shall not be transferred in a greater number public distribution prior to 90 days after the effective date of Registrable Securities held by such registration, or such other Holders shorter period of time as the underwriters may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationrequire.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Supershuttle International Inc)
Underwriting. If the registration Initiating Holders intend to distribute Registrable Securities by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof. In such event, the right of any Holder to registration pursuant to this Section 4.2 2.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent requested (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through In such underwriting event, the Company shall (together with the Company all Holders and the holders of other Holders distributing securities proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by a majority in interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 4.22.2, if the managing underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to and the Company other holders distributing their decision not to distribute any of their Registrable Securities securities through such underwriting ("Non-participating Holders"))underwriting, and the number of shares of Registrable Securities and other securities that may be included in the registration and underwriting shall be allocated among such all Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned entitled to inclusion (determined without regard to any requirement of a request to be included in such registration) in such registration held by all such Holders at the time of filing the registration statement; , provided, -------- however, that all the number of shares of Registrable Securities to be included in such underwriting shall not be reduced unless all other securities proposed to be sold for by persons other than the account of ------- the Non-participating Holders (or their transferees) shall be are first entirely excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holdersunderwriting. No Registrable Securities or other securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from registration, and such Registrable Securities shall not be transferred in a public distribution prior to 90 days after the effective date of such registration; provided, however, that, if or such other shorter period of time as the underwriters may require. If by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion and manner used above in determining the underwriter limitationlimitation in this Section 2.2(b). If the managing underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account or for the account of others in such registration if the underwriter so agrees and if the number of Registrable Securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof. In such event, the The right of any Holder Stockholder to registration include its Registrable Shares in a Piggyback Registration pursuant to Section 4.2 2.3(a) shall be conditioned upon such HolderStockholder's participation in such underwriting and the inclusion of such Holder's Registrable Securities contemplated underwritten public offering on the terms set forth in the underwriting to the extent provided hereinthis Agreement. All Holders Stockholders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such the underwriting by the CompanyAspen. Notwithstanding any other provision of this Section 4.22.3, if the underwriter determines managing underwriters reasonably determine that marketing factors require a limitation the inclusion of all shares requested to be registered would adversely affect the offering, then Aspen may limit the number of shares Registrable Shares to be underwritten, included in the underwriter may exclude some or all Registrable Securities from such registration Piggyback Registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the Stockholders requesting registration. The number of shares of Registrable Securities that may are entitled to be included in the registration and underwriting shall be allocated among such in the following manner:
(i) The securities of Aspen held by holders other than the Stockholders and the Other Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from such Piggyback Registration to the registration and underwriting prior to any reduction in extent deemed advisable by the managing underwriters, and, if a further limitation on the number of Registrable Securities proposed to be sold for shares is required, then the account number of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall shares that may be included in such registrationPiggyback Registration shall be allocated pro rata (on an as-converted basis) among all Stockholders and Other Holders requesting registration in accordance with the respective number of shares of Aspen Common held when Aspen provides notice as specified in Section 2.3(a).
(ii) If any Stockholder or Other Holder is entitled to include more securities than such Stockholder or Other Holder requested to be registered, then the excess securities shall be allocated among other requesting Stockholders and Other Holders pro rata in the manner described in the preceding clause (i). If any Stockholder or any Other Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company Aspen, and the underwriter. The any Registrable Securities and/or Shares or other securities so withdrawn from held by such underwriting Stockholder or Other Holder shall also be excluded or withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Registration Rights Agreement (Aspen Technology Inc /De/)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof1.3(a)(i). In such event, the right of any Holder to registration pursuant to this Section 4.2 1.3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.21.3, if the underwriter determines representative of the underwriters advises the Company in writing that marketing factors require a limitation of on the number of shares to be underwritten, the underwriter representative may (subject to the limitations set forth below) exclude some or all Registrable Securities from such from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and provided that the number of Registrable Securities to be included in such underwriting shall not be reduced unless all other securities proposed to be registered by shareholders of the Company are first entirely excluded from the underwriting, and provided further that the shares of Founders Stock, if any, proposed to be registered shall be reduced prior to the exclusion of any other Registrable Securities that in such underwriting. If the registration is the initial public offering of the Company's securities, the Company may limit, to the extent so advised by the underwriters, the amount of securities (including Registrable Securities) to be included in the registration by the Company's shareholders (including the Holders), and underwriting such securities shall be allocated apportioned pro rata among such Holders in proportionthe selling shareholders according to the total amount of securities entitled to be included therein owned by each selling stockholder, as nearly as practicable on a pari passu basisor the Company may exclude, to the respective amounts of Company securities owned extent so advised by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwritingunderwriters, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other underwritten securities so withdrawn from such underwriting shall also be withdrawn entirely from such registration; provided, however, that, if by that the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may to be included in such registration (up shall not be reduced unless all other securities proposed to be registered are first excluded from the underwriting, and provided further that the shares of Founders Stock, if any, proposed to be registered shall be reduced prior to the maximum exclusion of any limitation imposed other Registrable Securities in such underwriting. If such registration is the second or any subsequent registered offering of the Company's securities to the general public, the Company may limit, to the extent so advised by the underwriters, the amount of securities to be included in the registration by the Company's shareholders (including the Holders); provided, then however, that the aggregate number of Registrable Securities to be included in such registration by the Holders (excluding Founders Stock) may not be reduced to less than twenty percent (20%) of the total number of Registrable Securities included in such registration, to be apportioned pro rata among the Holders according to the total amount of securities entitled to be included therein owned by each Holder. If any person does not agree to the terms of any such underwriting, he shall be excluded therefrom by written notice from the Company or the underwriter. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration or if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors, the Company shall then offer to all Holders persons who have included Registrable Securities retained the right to include securities in the registration the right to include additional Registrable Securities securities in the same proportion used above registration in determining an aggregate amount equal to the underwriter limitationnumber of shares so withdrawn.
Appears in 1 contract
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company then they shall so advise the Holders Company as a part of the written notice given their request made pursuant to this Section 4.2(a) hereof2.3 and the Company shall include such information in the Request Notice. In such event, the right of any Holder to include its Registrable Securities in such registration pursuant to Section 4.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the CompanyHolders of a majority of the Registrable Securities being registered and reasonably acceptable to the Company (including a market stand-off agreement of up to 180 days if required by such underwriter or underwriters). Notwithstanding any other provision of this Section 4.22.3, if the underwriter determines underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of shares securities to be underwrittenunderwritten (including Registrable Securities), then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))which would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced as required by the underwriter(s) and allocated among such the Holders in proportion, as nearly as practicable of Registrable Securities on a pari passu basis, pro rata basis according to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed then outstanding held by each Holder requesting registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be sold for the account of included in such underwriting and registration shall not be reduced unless all other Holders. No Registrable Securities securities are first entirely excluded from the underwriting and registration including, without limitation, all shares that are not Registrable Securities and are held by reason any other person, including, without limitation, any person who is an employee, officer or director of the underwriter's marketing limitation shall Company or any direct or indirect subsidiary of the Company; provided further, that at least thirty percent (30%) of shares of Registrable Securities requested by the Holders to be included in such registrationunderwriting and registration shall be so included. For purposes of the preceding sentence concerning apportionment, for any selling 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, retired partners, members, retired members and shareholders of such Holder, or the estates and family members of any such partners, retired partners, members or retired members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single "Holder," and any pro rata reduction with respect to such "Holder" shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals. If any Holder disapproves of the terms of any such underwriting, such person Holder may elect to withdraw therefrom by written notice to the Company and the underwriterunderwriter(s), delivered at least ten (10) business days prior to the effective date of the registration statement. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be excluded and withdrawn from such the registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Shareholder Agreement (Ctrip Com International LTD)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof2.2(a)(i). In such event, the right of any Holder to registration pursuant to this Section 4.2 2.2 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.22.2, if the underwriter determines underwriters advise the Company in writing that marketing factors require a limitation of on the number of shares to be underwritten, the underwriter underwriters may exclude some or all (subject to the limitations set forth below) limit the number of Registrable Securities from such to be included in, the registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any holders of their Registrable Securities through such underwriting ("Non-participating Holders"))securities requesting registration, and the number of shares of Registrable Securities securities that may are entitled to be included in the registration and underwriting shall be allocated among such Holders in proportionallocated, as nearly as practicable on a pari passu basisfollows: (i) first, to the respective amounts of Company for securities owned by such being sold for its own account, and (ii) second, to the Holders at the time of filing the registration statement; provided, -------- however, that all requesting to include Registrable Securities proposed to be sold for in such registration statement based on the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number pro rata percentage of Registrable Securities proposed to be sold for the account of other held by such Holders, assuming conversion. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included If a person who has requested inclusion in such registration. If any Holder disapproves of registration as provided above does not agree to the terms of any such underwriting, such person may elect to withdraw shall also be excluded therefrom by written notice to from the Company and or the underwriter. The Registrable Securities and/or or other securities so withdrawn from such underwriting excluded shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such . Any Registrable Securities a greater or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities held by other Holders may to be included in such registration (up was previously reduced as a result of marketing factors pursuant to the maximum of any limitation imposed by the underwritersSection 2.2(b), then the Company shall then offer to all Holders persons who have included Registrable Securities retained the right to include securities in the registration the right to include additional Registrable Securities securities in the same proportion used above registration in determining an aggregate amount equal to the underwriter limitationnumber of shares so withdrawn, with such shares to be allocated among the persons requesting additional inclusion, in the manner set forth above.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof. In such event, the The right of any Holder to registration pursuant to this Section 4.2 3 shall be conditioned upon such Holder's ’s participation in such the underwriting and the inclusion of such Holder's ’s Registrable Securities Common Stock in the underwriting to the extent provided herein. All Holders proposing to distribute their securities Registrable Common Stock through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwritingCompany) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.23, in connection with a registration under Section 3(a) (but not under Section 3(b)) if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Registering Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))whose securities would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities Common Stock that may be included in the registration and underwriting shall be allocated among such all Registering Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Common Stock requested by such Registering Holders at to be included in such registration and underwriting, or, if so determined by the time of filing the registration statement; providedunderwriter, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) Common Stock shall be excluded from the such registration and underwriting prior to any reduction underwriting; provided, however, that in no event shall the amount of securities of the Registering Holders included in the number offering be reduced unless the amount of Registrable Securities proposed to be sold for the account securities of all other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be selling equity holders included in such registrationthe offering are proportionately reduced. If any Holder disapproves of the terms of any such underwriting, such person the Holder may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; providedIf, howeverin connection with a registration under Section 3(a), that, if by the withdrawal of such Registrable Securities Common Stock a greater number of shares of Registrable Securities Common Stock held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities Common Stock in the registration the right to include additional shares of Registrable Securities Common Stock in the same proportion used above in determining the underwriter limitationshares that may be included pursuant to the first paragraph of this Section 3(c).
Appears in 1 contract
Samples: Registration Rights Agreement (Energy & Exploration Partners, Inc.)
Underwriting. If the Holders initiating the registration request under this Section 7(b)(ii) ("INITIATING HOLDERS") intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company then they shall so advise the Holders Company as a part of their request, and the Company shall include such information in the written notice given pursuant referred to this in Section 4.2(a) hereof7(b)(ii)(A). In such event, the right of any Holder to include his or her Registrable Securities in such registration pursuant to Section 4.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to (unless otherwise mutually agreed by a majority in interest of the extent provided hereininitiating Holders and such Holder determined based on the number of Registrable Securities held by such Holders being registered). All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the CompanyHolders of a majority of the Registrable Securities being registered and reasonably acceptable to the Company (including a market stand-off agreement of up to ninety (90) days if required by such underwriters). Notwithstanding any other provision of this Section 4.27(b)(ii), if the underwriter determines underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of shares securities to be underwritten, underwritten then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))that would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced as required by the underwriter(s) and allocated among such the Holders in proportion, as nearly as practicable of Registrable Securities on a pari passu basis, pro rata basis according to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed requested to be sold for included in such registration by each Holder requesting registration (including the account initiating Holders); PROVIDED, HOWEVER, that the number of other Holders. No shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company and any selling securityholder other than the Holders are first entirely excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such and registration. If any Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Any Registrable Securities and/or other securities so excluded and withdrawn from such underwriting shall also be withdrawn from such the registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Securities Purchase and Investor Rights Agreement (Panja Inc)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof2.5(a)(i). In such event, event the right of any Holder to registration pursuant to Section 4.2 2.5 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.2, if If the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The underwriting and then the Company shall so advise all Holders (except those Holders of Registrable Securities who have indicated elected to the Company their decision not to distribute any of their Registrable Securities through participate in such underwriting ("Non-participating Holders")), offering and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such all Holders thereof in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed statement but the foregoing shall not be interpreted to require any cutback in the number of shares to be sold for by the account Company in such an offering. Notwithstanding the above, in the event of ------- an offering other than the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in Company's initial public offering, the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationoffering shall not be reduced to less than 20% of the shares to be offered in such offering. If any Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The Registrable Securities and/or other Any securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if . If by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation then imposed by the underwriters), then the Company shall offer to all Holders who Holders, if any, whose shares have included Registrable Securities in been excluded from the registration by the terms of this paragraph, the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationlimitation in this Section up to the limitation then imposed by the Underwriters.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof. In such event, the The right of any Holder to registration pursuant to this Section 4.2 1.2(a) shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided hereinarrangements required by this Section 1.2(b). All The Company and all Holders proposing to distribute their securities through in the underwritten registration shall, upon request by the managing underwriter selected for such underwriting by the Initiating Holders (which managing underwriter shall (together with be reasonably acceptable to the Company and the other Holders distributing their securities through such underwriting) Company), enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by in connection with the Companyoffering. Notwithstanding any other provision of this Section 4.21.2, if the managing underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated requested to the Company their decision not to distribute any of their Registrable Securities through participate in such underwriting ("Non-participating Holders"))offering, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all such Holders thereof in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities requested by such Holders at to be included in such registration in the time priority listed below, up to the aggregate maximum number of filing shares that, in the registration statement; providedview of such managing underwriter, -------- howevercan be included: (i) first, that all Registrable Securities requested to be registered by any Initiating Holders; (ii) second, all Registrable Securities requested to be included in such registration by any other Holder; and (iii) third, any Common Stock proposed to be sold for registered by the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration Company and underwriting prior to any reduction in the number of Registrable Securities Common Stock proposed to be sold for registered by other holders as a result of rights existing in favor of such other holders pursuant to the account of other HoldersPrior Registration Rights Agreement. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such the underwriting, such person Holder may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from registration, and such Registrable Securities shall not be transferred in a public distribution prior to ninety (90) days after the effective date of such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion and manner used above in determining the underwriter limitationlimitation in this Section 1.2(b).
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof18(c)(i)(A). In such event, event the right of any Holder to registration pursuant to this Section 4.2 18(c) shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (shall, together with the Company and the other Holders parties distributing their securities through such underwriting) , enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.218(c), if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all limit the number of Registrable Securities from such to be included in the registration and underwriting, subject to the terms of this Section 18(c). The Company shall so advise all Holders (except those Holders who have indicated to holders of the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))Company's securities that would otherwise be registered and underwritten pursuant hereto, and the number of shares of such securities, including Registrable Securities Securities, that may be included in the registration and underwriting shall be allocated in the following manner: shares, other than Registrable Securities and other securities that are entitled to contractual rights with respect to registration similar to those provided for in this Section 18(c), requested to be included in such registration by shareholders shall be excluded, and if a limitation on the number of shares is still required, the number of Registrable Securities and other securities that are entitled to contractual rights with respect to registration that may be included shall be allocated among such Holders the holders thereof in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company Registrable Securities and such other securities owned held by each such Holders holder at the time of filing the registration statement; providedRegistration Statement. For purposes of any such underwriter cutback, -------- however, that all Registrable Securities proposed and other securities held by any holder that is a partnership or corporation, shall also include any Registrable Securities held by the partners, retired partners, shareholders or affiliated entities 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, and such holder and other persons shall be deemed to be sold for the account of ------- the Non-participating Holders (or their transferees) a single "selling holder," and any pro rata reduction with respect to such "selling holder" shall be excluded from based upon the aggregate amount of shares carrying registration rights owned by all entities and underwriting prior to any reduction individuals included in the number of Registrable Securities proposed to be sold for the account of other Holderssuch "selling holder," as defined in this sentence. No Registrable Securities securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. Nothing in this Section 18(c)(ii) is intended to diminish the number of securities to be included by the Company in the underwriting. If any Holder disapproves of the terms of any such the underwriting, such person it may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering Public Offering involving an underwriting, the Company shall so advise the Holders Shareholders as a part of the written notice given pursuant to this Section 4.2(a) hereofSECTION 3.2(a)(i). In such event, event the right of any Holder Shareholder to registration pursuant to Section 4.2 this SECTION 3.2 shall be conditioned upon such HolderShareholder's participation in such underwriting and the inclusion of such HolderShareholder's Registrable Securities in the underwriting to the extent provided herein. All Holders Shareholders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders Shareholder distributing their securities Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.2SECTION 3.2, if the managing underwriter determines that the number of shares requested to be included in the registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the Company or that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to underwritten on behalf of the Company their decision not to distribute any of their Registrable Securities through such underwriting (the "Non-participating HoldersCompany Registration Cutback")), and then the number of shares of Registrable Securities that may be included Company will include in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basisregistration, to the respective amounts extent of the number and type which the Company securities owned by such Holders at is so advised can be sold in (or during the time of) such offering without such effect on the price, FIRST, all securities of filing the registration statement; provided, -------- however, that all Registrable Securities Company proposed to be sold by the Company for its own account, SECOND, the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed requested by the Purchasers and the other Shareholders to be sold for the account of included in such registration, and FINALLY, any other Holders. No Registrable Securities excluded from the underwriting by reason securities of the underwriter's marketing limitation shall Company requested to be included in such registration. If any Holder disapproves In the event a Company Registration Cutback results in less than all of the terms securities of any such underwritinga particular category (i.e., such person may elect securities proposed to withdraw therefrom be registered by written notice the Company; securities proposed to the Company be registered by Purchasers and the underwriter. The Registrable Securities and/or other Shareholders; and securities so withdrawn from such underwriting shall also proposed to be withdrawn from such registration; provided, however, that, if registered by Persons other than the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may Shareholders) that are requested to be included in such registration (up to the maximum of any limitation imposed by the underwriters)actually be included in such registration, then the Company number of securities of such category that will be included in such registration shall offer be shared pro rata among all of the holders of securities of such category that were requested to all Holders who have be included Registrable Securities in such registration based on the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationnumber of shares held by each holder of securities of such category.
Appears in 1 contract
Underwriting. If the registration of which the Company gives ------------ notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof2.5(a)(i). In such event, event the right of any Holder to registration pursuant to Section 4.2 2.5 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.22.5, if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")underwriting), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities Registrable Securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Investors' Rights Agreement (Aastrom Biosciences Inc)
Underwriting. If the registration of which the Company ------------ gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof2.3(a)(i). In such event, event the right of any Holder to registration pursuant to this Section 4.2 2.3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (shall, together with the Company and the other Holders parties distributing their securities through such underwriting) , enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.22.3, if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all limit the number of Registrable Securities to be included in the registration and underwriting, or may exclude Registrable Securities entirely from such registration and underwritingunderwriting subject to the terms of this Section 2.3. The Company shall so advise all Holders (except those Holders who have indicated to holders of the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))Company's securities that would otherwise be registered and underwritten pursuant hereto, and the number of shares of such securities, including Registrable Securities Securities, that may be included in the registration and underwriting shall be allocated among in the following manner: shares, other than Registrable Securities and other securities that have contractual rights with respect to registration similar to those provided for in this Section 2.3, requested to be included in such Holders registration by stockholders shall be excluded; if a limitation on the number of shares is still required, securities, other than the Registrable Securities, that have contractual rights with respect to registration shall be reduced in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company such securities owned with such contractual rights held by each such Holders holder at the time of filing the registration statementRegistration Statement; providedand after excluding all such securities, -------- howeverif a limitation on the number of shares is still required, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed that may be included shall be reduced in proportion, or as nearly as practicable, to the amounts of Registrable Securities held by each such holder at the time of filing the Registration Statement. For purposes of any such underwriter cutback, all Registrable Securities and other securities held by any holder that is a partnership, limited liability company or corporation shall also include any Registrable Securities held by the partners, retired partners, members, stockholders or affiliated entities of such holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons, and such holder and other persons shall be deemed to be sold for a single "selling holder," and any pro rata reduction with respect to such "selling holder" shall be based upon the account aggregate amount of other Holdersshares carrying registration rights owned by all entities and individuals included in such "selling holder", as defined in this sentence. No Registrable Securities securities excluded from the underwriting by reason of the underwriter's underwriters marketing limitation shall be included in such registration. Nothing in this Section 2.3(b) is intended to diminish the number of securities to be included by the Company in the underwriting. If any Holder disapproves of the terms of any such the underwriting, such person it may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to Section 2.2(a) and the Company shall include such information in the written notice given pursuant referred to this in Section 4.2(a2.2(a)(i). The Company may require that any registration of shares constituting more than one percent (1%) hereofof the total number of shares then outstanding be firmly underwritten. In such event, the right of any Holder to registration pursuant to Section 4.2 2.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided hereinunderwriting. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwritingsecurities) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Holders participating in such registration (which underwriter or underwriters shall be subject to the reasonable approval of the Company). Notwithstanding any other provision of this Section 4.22.2, if the underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company Initiating Holders shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))which would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such the Holders of Registrable Securities requesting registration in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts total number of Company securities owned Registrable Securities held by such Holders at the time of filing of the registration statement; provided. In no event, -------- except in the Company's initial public offering, however, that all shall (a) any Registrable Securities proposed to be eliminated from the registration until any and all shares being sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration Company and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No shareholders who are not Holders are first eliminated or (b) the Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall to be included in such registrationoffering be less than thirty percent (30%) of the securities included therein (based on aggregate market values). If any Holder disapproves of the terms of any such the underwriting, such person he may elect to withdraw therefrom by written notice to the Company Company, the underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If the registration of which the Company gives ------------ notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders and Founder Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof2.5(a)(i). In such event, event the right of any Holder and Founder Holders to registration pursuant to this Section 4.2 2.5 shall be conditioned upon such Holder's or Founder Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders and Founder Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.22.5, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may exclude some or all limit the Registrable Securities from to be included in such registration and underwritingregistration. The Company shall so advise all Holders (except those and Founder Holders who have indicated to the Company and other holders distributing their decision not to distribute any of their Registrable Securities securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders and Founder Holders and such Holders other holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders and Founder Holders and such other holders at the time of filing the registration statement; provided. To facilitate the allocation of shares in accordance with the above provisions, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in Company may round the number of Registrable Securities proposed shares allocated to be sold for any Holder and Founder Holder or other holder to the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationnearest 100 shares. If any Holder and Founder Holder or other holder disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The Registrable Securities and/or other Any securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by and shall not be transferred in a public distribution prior to 90 days after the withdrawal effective date of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration statement relating thereto, or such other shorter period of time as the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationunderwriters may require.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders Holder as a part of the written notice given pursuant to this Section 4.2(a) hereof1.2(a)(i). In such event, the right of any Holder to registration pursuant to Section 4.2 1.2 shall be he conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting underwriting, to the extent requested, to the extent provided herein. All Holders proposing to distribute their securities through such underwriting The Holder shall (together with the Company and the other Holders holders distributing their securities through such underwritingunderwriting (the "Other Participating Holders")) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.21.2, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and limit the number of shares of Registrable Securities that may to be included in the registration and underwriting shall be allocated among such Holders in proportionunderwriting, as nearly as practicable on a pari passu basispro rata basis based on the total number of securities (including, without limitation, Registrable Securities) requested to be registered pursuant to registration rights granted to the respective amounts of Company securities owned Holder and the Other Participating Holders by such Holders at the time of filing the registration statementCompany; provided, -------- however, however that all the right of the underwriters to exclude shares (including Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transfereesSecurities) shall be excluded from the registration and underwriting prior to any reduction in as described above shall be restricted so that the number of Registrable Securities included in any such registration is not reduced below twenty-five percent (25%) of the shares included in the registration. Notwithstanding any other provision of this Section 1.2. if the managing underwriter of a proposed to be sold for public offering shall advise the account Company in writing that, in its opinion, the distribution of other Holders. No the shares of Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall requested to be included in the registration concurrently with the securities being registered by the Company or the Other Participating Holder would adversely affect the distribution of such securities by the Company or the Other Participating Holders, then the Holders of Registrable Securities, the Other Participating Holders (other than any Other Participating Holder who initially requested such registration, any Holder of Registrable Securities participating in such registration pursuant to Section 12 hereof) and the Company shall reduce the amount of securities each intended to distribute through such offering on a pro rata basis. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to the Holder or the Other Participating Holders to the nearest one hundred (100) shares. If the Holder or any Other Participating Holder disapproves of the terms of any such underwriting, such person it, he or she may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The Registrable Securities and/or other Any securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by and shall not be transferred in a public distribution prior to one hundred and eighty (180) days after the withdrawal effective date of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationstatement relating thereto.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the The Company shall so advise give notice to the Holders as a part of the written notice given managing underwriters for the Underwritten Offering proposed under the IPO Registration Statement. The right of any such Holder's Registrable Shares to be included in any IPO Registration Statement pursuant to this Section 4.2(a2(b) hereof. In such event, the right of any Holder to registration pursuant to Section 4.2 shall be conditioned upon such Holder's participation in such underwriting Underwritten Offering and the inclusion of such Holder's Registrable Securities Shares in the underwriting Underwritten Offering to the extent provided herein. All Holders proposing to distribute their securities Registrable Shares through such underwriting Underwritten Offering shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or managing underwriters selected for such underwriting and complete and execute, as reasonably requested as to scope and form, any questionnaires, powers of attorney, indemnities, securities escrow agreements and other documents reasonably required under the terms of such underwriting, and furnish to the Company such information in writing as the Company may reasonably request for inclusion in the Registration Statement; provided, however, 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 as are customary and reasonably requested by the Companyunderwriters. Notwithstanding any other provision of this Section 4.2Agreement, if the underwriter determines managing underwriters determine in their sole discretion that marketing factors require a limitation of on the number of shares to be underwrittenincluded, then the underwriter managing underwriters may exclude some or all shares (including Registrable Securities Shares) from such registration the IPO Registration Statement and underwriting. The Company the Underwritten Offering and any Shares included in the IPO Registration Statement and the Underwritten Offering shall so advise all Holders (except those Holders who have indicated be allocated, first, to the Company their decision not Company, and second, to distribute any each of the Holders requesting inclusion of their Registrable Securities through Shares in such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable IPO Registration Statement on a pari passu basis, to pro rata basis based on the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the total number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting Shares then held by reason of the underwriter's marketing limitation shall be included in each such registrationHolder which is requesting inclusion. If any Holder disapproves of the terms of any such underwritingUnderwritten Offering, such person 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 IPO Registration Statement. The Any Registrable Securities and/or other securities so Shares excluded or withdrawn from such underwriting Underwritten Offering shall also be excluded and withdrawn from such registration; provided, however, thatthe IPO Registration Statement. In the case of an Underwritten Offering of the Company's securities other than its Common Stock, if by the withdrawal of such Registrable Securities managing underwriters determine in their sole discretion that marketing factors require a greater limitation or total exclusion on the number of Registrable Securities held by other Holders may Shares to be included in such registration (up to the maximum of any limitation imposed by the underwriters)included, then the Company shall offer to managing underwriters may exclude any or all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationShares from such Underwritten Offering.
Appears in 1 contract
Samples: Registration Rights Agreement (Spirit Finance Corp)
Underwriting. If the written request for registration of which the Company gives notice ------------ is for a registered public Initiating S-3 Holders requests an underwritten offering involving an underwritingof Registrable Securities, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof. In such event, then the right of any Holder to registration pursuant to this Section 4.2 4 shall be conditioned upon such Holder's participation in such the underwriting arrangements required by this Section 4 and the inclusion of such Holder's Registrable Securities in the underwriting to the extent requested to the extent provided herein. All .
(i) The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating S-3 Holders (which managing underwriter shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 4.24, if the managing underwriter determines advises the Initiating S-3 Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company Initiating S-3 Holders shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any holders of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such all Holders thereof in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. .
(ii) The Company shall be entitled to include in any registration statement referred to in this Section 4, for sale in accordance with the method specified by the Initiating S-3 Holders, shares of Common Stock to be sold by the Company for its own account, except as and to the extent that, in the opinion of the managing underwriter (if such method of disposition shall be an underwritten public offering) or in the opinion of the Board of Directors of the Company (if such method of disposition is not an underwritten public offering) such inclusion would adversely affect the marketing of the Registrable Securities to be sold.
(iii) If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person Person may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterInitiating S-3 Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from registration, and such Registrable Securities shall not be transferred in a public distribution prior to ninety (90) calendar days after the effective date of such registration; provided, however, that, if if, by the withdrawal of such Registrable Securities Securities, a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationlimitation in this Section 4(b).
Appears in 1 contract
Underwriting. If In the event that a registration of which the Company gives notice ------------ pursuant to ------------
Section 2.1 is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof2.1(a)(i). In such event, the right of any Holder to registration pursuant to Section 4.2 2.1 shall be conditioned upon such Holder's participation in such the underwriting arrangements required by this Section 2.1, and the inclusion of such Holder's Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. All Holders proposing to distribute their securities through such underwriting The Company shall (together with the all Holders and other holders of Company and the other Holders distributing securities who have rights to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Initiating Holders, but subject to the Company's reasonable approval. Notwithstanding any other provision of this Section 4.2anything herein to the contrary, if the managing underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated requested to participate in the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), registration and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such all Holders who have requested to participate in the registration in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders each of them at the time of filing the registration statement; provided, -------- howeverbut only after eliminating from such registration the securities held by other holders of Company securities whose rights to distribute their securities through such underwriting are junior to those of the Holders, and provided further, that the Registrable Securities held by all Holders that are not Initiating Holders shall be reduced and eliminated from such registration before the reduction or elimination of any Registrable Securities held by any Initiating Holders and the Registrable Securities held by the Initiating Holders shall be reduced only after all Registrable Securities proposed to be sold for the account of ------- the Non-participating held by other Holders (or their transferees) shall be excluded have been eliminated from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holdersunderwritten registration. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares. If any Holder disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of and such Registrable Securities shall be withheld from the market for a greater number period of Registrable Securities held by one hundred twenty (120) days after the effective date of such registration, or such other Holders shorter period of time as the underwriters may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationrequire.
Appears in 1 contract
Samples: Registration Rights Agreement (Group Maintenance America Corp)
Underwriting. If the registration of statement under which the Company gives notice ------------ under this Section 2.2 is for a registered public offering involving an underwritingunderwritten offering, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereofRegistrable Securities. In such event, the right of any such Holder to be included in a registration pursuant to this Section 4.2 2.2 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting to the extent provided hereinin this Agreement. All Holders proposing who propose to distribute their securities Registrable Securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.2Agreement, if the underwriter determines in good faith that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportionallocated, as nearly as practicable on a pari passu basis(i) first, to the respective amounts Company; (ii) second, to the Holders on a pro rata basis based on the total number of Company securities owned Registrable Securities held by such Holders, except that on and after the third anniversary of the Effective Date, the number of shares shall be allocated in this second level of priority on a pro rata basis based on the total number of Registrable Securities held by such Holders at and the time total number of filing shares of Common Stock held by other stockholders who have piggyback registration rights with respect to such shares of Common Stock; and (iii) third, to any stockholder of the Company (other than a Holder and, after the third anniversary of the Effective Date, other than any other stockholders who have piggyback registration statement; providedrights) on a pro rata basis. Except as provided in clause (ii) above (with respect to registrations under piggyback registration rights held by other stockholders, -------- howeverif any, that all are exercised after the third anniversary of the Effective Date), in no event will shares of any other selling stockholder be included in such 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 proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationoffering. If any Holder disapproves of the terms of any such underwriting, such person Holder may elect to withdraw therefrom its Registrable Securities from such registration 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. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be excluded and withdrawn from such the registration; provided. For purposes of this Section 2.2(a) only, howeverfor any Holder which is a partnership or corporation, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.the
Appears in 1 contract
Underwriting. If the Holders initiating the registration request under this Section 3.3 (the “Initiating Holders”) intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company then they shall so advise the Holders Company as a part of the written notice given their request made pursuant to this Section 4.2(a3.3 and the Company shall include such information in the Request Notice referred to in Section 3.3(a) hereof. In such eventthe event of an underwritten offering, the right of any Holder to include its Registrable Securities in such registration pursuant to Section 4.2 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by at least a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Holders of at least a majority of the Registrable Securities being registered and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 4.23.3, if the underwriter determines underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of shares securities to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))which would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced as required by the underwriter(s) and allocated among such the Holders in proportion, as nearly as practicable of Registrable Securities on a pari passu basis, pro rata basis according to the respective amounts number of Company securities owned Registrable Securities then outstanding held by such Holders at each Holder requesting registration (including the time of filing the registration statementInitiating Holders); provided, -------- however, that all that, other than the Company’s Qualified Public Offering, the right of the underwriter(s) to exclude Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in as described above shall be restricted so that: (i) the number of Registrable Securities proposed included in any such registration is not reduced below twenty-five percent (25%) of the aggregate number of Registrable Securities for which inclusion has been requested, even if this will cause the Company to reduce the number of shares it wishes to offer; and (ii) all Shares that are not Registrable Securities and are held by any other Person, including 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. Further, if, as a result of such underwriter cutback, the Holders cannot include in the offering all of the Registrable Securities that they have requested to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason included therein, then such registration shall not be deemed to constitute one (1) of the underwriter's marketing limitation shall be included in such registrationtwo (2) demand registrations to which the Holders are entitled pursuant to this Section 3.3. If any Holder disapproves of the terms of any such underwriting, such person Holder may elect to withdraw therefrom by delivering a written notice to the Company and the underwriterunderwriter(s), delivered at least ten (10) Business Days prior to the effective date of the registration statement. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be excluded and withdrawn from such the registration; provided. For any Holder that is a partnership, however, that, if by the withdrawal Holder and the partners and retired partners of such Registrable Securities 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, and for any Holder that is a greater number corporation, the Holder and all corporations that are Affiliates of Registrable Securities held such Holder, shall be deemed to be a single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate amount of shares carrying registration rights owned by other Holders may be all entities and individuals included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation“Holder,” as defined herein.
Appears in 1 contract
Underwriting. If the registration of which the Company BARRA gives notice ------------ is for a registered public offering involving an underwriting, the Company BARRA shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof7.2(a)(i). In such event, the right of any Holder to registration pursuant to this Section 4.2 7 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwritingBARRA) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the CompanyBARRA. Notwithstanding any other provision of this Section 4.27, if the underwriter determines that marketing factors require a limitation of the number of BARRA shares to be underwritten, the underwriter may exclude some or all limit the number of Registrable Securities to be included in the registration and underwriting, or may exclude Registrable Securities entirely from such registration and underwriting. The Company In such event BARRA shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))whose securities would otherwise be registered and underwritten pursuant hereto, and the number of BARRA shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such all Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities entitled to inclusion in such registration held by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom by written notice to the Company BARRA and the underwriterunderwriter provided on or before ten (10) days prior to the filing of the registration statement. The Registrable Securities and/or other Any securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by registration and shall not be transferred in a public distribution prior to 180 days after the withdrawal Closing Date of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationstatement relating thereto.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof2.2(a)(i). In such event, the right of any Holder to registration pursuant to Section 4.2 2.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting shall be limited to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.22.2, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may exclude some or all limit the Registrable Securities from to be included in such registration to zero; provided that the Company shall ensure that such reductions shall be made in the following order of priority: (x) first, the shares held by selling holders other than Holders of Registrable Securities shall be reduced; (y) second, the shares held by the Holders of Registrable Securities shall be reduced pro rata based upon the number of Registrable Securities held by each Holder, and underwriting(z) third, the shares of the Company to be included in the underwriting shall be reduced. The Company shall so advise all Holders (except those Holders who have indicated requesting to be included in the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))registration and underwriting, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such all the Holders requesting to be included in the registration and underwriting in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders them at the time of filing the registration statement; provided. To facilitate the allocation of shares in accordance with the above provisions, -------- however, that all Registrable Securities proposed to be sold for the account of ------- Company or the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in underwriters may round the number of Registrable Securities proposed shares allocated to be sold for any Holder to the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationnearest 100 shares. If any Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationCompany.
Appears in 1 contract
Underwriting. If the registration Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to Section 5(a) and the Company shall include such information in the written notice given pursuant referred to this in Section 4.2(a) hereof5(a). In such event, the The right of any Holder to registration pursuant to Section 4.2 5 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided hereinunderwriting. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the CompanyCompany (and reasonably acceptable to a majority in interest of the participating Holders). Notwithstanding any other provision of this Section 4.25, if the managing underwriter determines advises the Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then, subject to the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The provisions of Section 5(a), the Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such all Holders requesting inclusion in the registration in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the managing underwriter's marketing limitation shall be included in such registration. If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterother Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, that if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining as the underwriter limitationsecurities being registered.
Appears in 1 contract
Samples: Merger Agreement (Adam Inc)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwritingIn connection with any Underwritten Offering under this Section 2, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof. In such event, the right of any Holder to registration pursuant to Section 4.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Initiating Holders with the consent of the Company, such consent not to be unreasonably withheld, delayed or conditioned. Notwithstanding any other provision of this Section 4.22, if the underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company Initiating Holders shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated as set forth in this Section 2(b). The shares of Common Stock that may be included shall be allocated first, to the shares requested to be included by the Initiating Holders, and then the shares requested to be included by other Holders, with such shares allocated among such Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; providedsecond, -------- however, that all Registrable Securities proposed if there remains additional availability for additional Common Stock to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationoffering, among all Merger RRA Holders in proportion, as nearly as practicable, to the respective amounts of Merger RRA Registrable Securities requested to be included in such registration by such Merger RRA Holders; and third, if there remains availability for additional securities to be included in such offering, to any Persons, other than the Holders or the Merger RRA Holders, who have been granted registration rights, or who have requested participation in the offering, with such priorities among them as the Company shall determine. If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person the Holder may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if If by the withdrawal of such Registrable Securities a greater number of Registrable Securities shares held by other Holders Persons may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders holders who have included Registrable Securities shares in the registration the right to include additional Registrable Securities shares in the same proportion used above in determining the underwriter limitationlimitation in this Section 2(b). If the underwriter has not limited the number of shares to be underwritten, the Company may include shares for its own account if the underwriter so agrees and if the number of shares which would otherwise have been included in such registration and underwriting will not thereby be limited.
Appears in 1 contract
Samples: Registration Rights Agreement (Frank's International N.V.)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the The Company shall so advise the Holders as a part of the written notice given managing underwriters for any Underwritten Offering proposed under the Piggyback Registration Statement. The right of any such Holder’s Registrable Shares to be included in any Piggyback Registration Statement pursuant to this Section 4.2(a2(b) hereof. In such event, the right of any Holder to registration pursuant to Section 4.2 shall be conditioned upon such Holder's ’s participation in such underwriting Underwritten Offering and the inclusion of such Holder's ’s Registrable Securities Shares in the underwriting Underwritten Offering to the extent provided herein. All Holders proposing to distribute their securities Registrable Shares through such underwriting Underwritten Offering shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or managing underwriters selected for such underwriting and complete and execute any questionnaires, powers of attorney, indemnities, securities escrow agreements and other documents reasonably required under the terms of such underwriting, and furnish to the Company such information in writing as the Company may reasonably request for inclusion in the Registration Statement; provided, however, 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 as are customary and reasonably requested by the Companyunderwriters. Notwithstanding any other provision of this Section 4.2Agreement, if the underwriter determines managing underwriters determine in good faith that marketing factors require a limitation of on the number of shares to be underwrittenincluded, then the underwriter managing underwriters may exclude some or all shares (including Registrable Securities Shares) from such registration the Piggyback Registration Statement and underwriting. The Company the Underwritten Offering, and any Shares included in the Piggyback Registration Statement and the Underwritten Offering shall so advise all Holders (except those Holders who have indicated be allocated, first, to the Company their decision not Company, and second, to distribute any each of the Holders and the Prior Holder(s) requesting inclusion of their Registrable Securities through Shares (or equivalent term under the applicable agreement with such underwriting ("Non-participating Holders")), and Prior Holder) in such Piggyback Registration Statement on a pro rata basis based on the total number of such shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed requested to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationincluded. If any Holder disapproves of the terms of any such underwritingUnderwritten Offering, such person Holder may elect to withdraw therefrom by written notice to the Company and the underwriter, delivered at least 10 Business Days prior to the effective date of the Piggyback Registration Statement. The Any Registrable Securities and/or other securities so Shares excluded or withdrawn from such underwriting Underwritten Offering shall also be excluded and withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationPiggyback Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Whittier Energy Corp)
Underwriting. If In the registration event that the Initiating Holders intend to distribute their Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, they shall so advise the Company as part of their request made pursuant to this Section 1.5 and the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof1.5(a)(i). In such event, the right of any Holder to registration pursuant to Section 4.2 1.5 shall be conditioned upon such Holder's participation in such the underwriting arrangements required by this Section 1.5(b) and the inclusion of such Holderholder's Registrable Securities in the underwriting to the extent requested and to the extent provided herein. All The Company (together with all Holders proposing to distribute their securities through such underwriting) shall, upon request by the managing underwriter selected for such underwriting by a majority in interest of the Initiating Holders (which managing underwriter shall (together be reasonably acceptable to the Company), enter into any reasonable agreement requested by the managing underwriter in connection with the Company and the other Holders distributing their securities through such underwriting) enter into offering including, but not limited to, an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Companymanaging underwriter. Notwithstanding any other provision of this Section 4.21.5, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may limit or exclude some the securities to be included in such registration by any Holder exercising its rights pursuant to this Section 1.5; provided that if any exclusion or all limitation of securities is so required, the securities to be included shall be apportioned as follows: first, among the Holders of Registrable Securities from participating in such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated pursuant to the Company their decision not to distribute any exercise of their Registrable Securities through such underwriting ("Non-participating Holders")), and rights in this Section 1.5 in proportion to the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among held by such Holders in proportionHolders, as nearly as practicable on a pari passu basissecond, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; providedCompany, -------- howeverand third, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction other holders of securities of the Company entitled to participate and participating in such registration ("Other Holders") in proportion to the number of Registrable Securities proposed to be sold for shares of the account of other Company's Common Stock (or equivalents thereof) held by such Other Holders. No securities or Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from registration, and such Registrable Securities shall not be transferred in a public distribution prior to ninety (90) days after the effective date of such registration; providedPROVIDED, howeverHOWEVER, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities Securi ties in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationlimitation in this Section 1.5(b).
Appears in 1 contract
Samples: Registration Rights Agreement (Kosan Biosciences Inc)
Underwriting. If the registration of statement under which the Company gives notice ------------ under this Section 2.3 is for a registered public offering involving an underwritingunderwritten offering, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereofRegistrable Securities. In such event, the right of any such Holder to be included in a registration pursuant to this Section 4.2 2.3 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.2the Agreement, if the underwriter determines in good faith that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportionallocated, as nearly as practicable on a pari passu basisfirst, to the respective amounts Company; second, to the Holders proposing to distribute their Registrable Securities in such underwriting on a pro rata basis based on the total number of Registrable Securities held by such Holders; and third, to any stockholder of the Company (other than a Holder) on a pro rata basis. No such reduction shall reduce the securities owned being offered by the Company for its own account to be included in the registration and underwriting. In no event will shares of any other selling stockholder be included in such registration which would reduce the number of shares which may be included by such Holders at without the time written consent of filing Holders of not less than a majority of the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationoffering. If any Holder disapproves of the terms of any such underwriting, such person 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. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be excluded and withdrawn from such the registration; provided. For any Holder which is a partnership, howevercorporation or limited liability company, thatthe partners, if by the withdrawal retired partners, stockholders, members, retired members and Affiliates of such Registrable Securities Holder, as applicable, or the estates and family members of any such partners, retired partners, members and retired members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a greater number single “Holder”, and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate amount of Registrable Securities held shares carrying registration rights owned by other Holders may be all entities and individuals included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities “Holder,” as defined in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationthis sentence.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Ironwood Pharmaceuticals Inc)
Underwriting. If the Holders initiating the registration request under this Section 3.3 (the “Initiating Holders”) intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company then they shall so advise the Holders Company as a part of the written notice given their request made pursuant to this Section 4.2(a) hereof3.3 and the Company shall include such information in the Request Notice referred to in Section 3.3(a). In such eventthe event of an underwritten offering, the right of any Holder to include its Registrable Securities in such registration pursuant to Section 4.2 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities being registered and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 4.23.3, if the underwriter determines underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of shares securities to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))which would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced as required by the underwriter(s) and allocated among such the Holders in proportion, as nearly as practicable of Registrable Securities on a pari passu basis, pro-rata basis according to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed then outstanding held by each Holder requesting registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be sold for the account of included in such underwriting and registration shall not be reduced (x) by more than seventy-five percent (75%) and (y) unless all other Holders. No Registrable Securities securities are first entirely excluded from the underwriting and registration including all shares that are not Registrable Securities and are held by reason any other Person, including any Person who is an employee, officer or director of the underwriter's marketing limitation shall Company or any Subsidiary of the Company. Further, if, as a result of such underwriter cutback, the Holders cannot include in the IPO all of the Registrable Securities that they have requested to be included in therein, then such registrationRegistration shall not be deemed to constitute one of the three (3) demand Registrations to which the Holders are entitled pursuant to this Section 3. If any Holder disapproves of the terms of any such underwriting, such person Holder may elect to withdraw therefrom by delivering a written notice to the Company and the underwriterunderwriter(s), delivered at least ten (10) Business Days prior to the effective date of the registration statement. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be excluded and withdrawn from such the registration; provided. For any Holder that is a partnership, however, that, if by the withdrawal Holder and the partners and retired partners of such Registrable Securities 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, and for any Holder that is a greater number corporation, the Holder and all corporations that are affiliates of Registrable Securities held such Holder, shall be deemed to be a single “Holder,” and any pro-rata reduction with respect to such “Holder” shall be based upon the aggregate amount of shares carrying registration rights owned by other Holders may be all entities and individuals included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation“Holder,” as defined herein.
Appears in 1 contract
Samples: Shareholder Agreement (Yunji Inc.)
Underwriting. If the registration Initiating Holders intend to distribute the ------------ Registrable Securities covered by such request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of the written notice given request made by such Holders pursuant to this Section 4.2(aSubsection 3.3(a). The Company shall enter into an agreement in customary form for a secondary distribution with the underwriter (or underwriters) hereofselected by such Initiating Holders for such underwriting, provided such underwriters are reasonably acceptable to the Company, but the Company shall not be required to pay any commission to the underwriter in respect of the sale of Registrable Securities. In such eventIf the Company requests inclusion of the securities of another stockholder (the "Stockholder Securities") in any registration affected pursuant to a Demand Notice, the right of any Holder to registration pursuant to Section 4.2 Holders shall be conditioned upon such Holder's participation in such underwriting and include the inclusion of such Holder's Registrable Stockholder Securities in the underwriting to and may condition such offer on acceptance by such other stockholders of the extent provided hereinprovisions of this section. All Holders proposing to distribute their securities through such underwriting The Company shall (together with the Company and the all other Holders distributing stockholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter (or underwriters underwriters) selected for such underwriting by the Initiating Holders reasonably acceptable to the Company. Notwithstanding any other provision of this Section 4.2section, if the subject underwriter determines advises the Holders in writing that marketing factors require a limitation of on the number of shares to be underwritten, the underwriter Stockholder Securities may exclude some or all Registrable Securities from such registration and underwriting. The be limited by reason of the underwriter's marketing limitation to the extent required by the underwriter, provided that, the Company shall so advise all Holders (except those Holders who have indicated be entitled to include in the Company their decision not total number of shares permitted by the underwriter to distribute any of their Registrable Securities through such be included in the underwriting (the "Non-participating HoldersUnderwritten Securities")), ) that percentage of the Underwritten Securities derived by (i) dividing the number of Stockholder Securities by (ii) the sum of the number of Stockholder Securities and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities Common Stock owned by such the Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders multiplied by (or their transfereesiii) shall be excluded from the registration and underwriting prior to any reduction in the number of Underwritten Securities. Registrable Securities proposed to be sold for the account of or any other Holders. No Registrable Securities securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder other stockholder who has requested inclusion in such registration as provided above disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by . If the withdrawal of such Registrable Securities a greater underwriter has not limited the number of Registrable Securities held by or other Holders securities to be underwritten, the Company may be include securities for its own account in such registration if the underwriter so agrees and if the number of Registrable Securities and other securities which would otherwise have been included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationand underwriting will not thereby be limited.
Appears in 1 contract
Underwriting. If the registration Initiating Holder or Initiating Holders, as the case may be, intend to distribute the Registrable Securities covered by its request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company it shall so advise the Holders Company as a part of such request and the Company shall include such information in its written notice given pursuant to this Section 4.2(a) hereofthe other Holders. In such event, the The right of any Holder to registration pursuant to this Section 4.2 2(c) shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holder(s) and such Holder) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders).
(i) Notwithstanding any other provision of this Section 4.22, if the managing underwriter determines advises the Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities and other securities of the Company that may be included in the registration and underwriting shall be allocated allocated, subject to the rights of the Series D Holders requesting to include in the registration Series D Registrable Securities in accordance with the terms of the Series D Registration Rights Agreement, among such (A) all Holders requesting inclusion in the registration in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities originally requested by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction included in the number Registration Statement and (B) all other security holders of Registrable Securities proposed to be sold the Company that possess registration rights for other securities granted by the account of other HoldersCompany. No Registrable Securities excluded from the underwriting by reason of the underwriter's ’s marketing limitation shall be included in such registration. If the underwriter or underwriters has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account if the underwriter so agrees.
(ii) If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person may Holder may, subject to Section 4 hereof, decline to participate therein or elect to withdraw therefrom by written notice to the Company Company, the underwriter(s) and the underwriterother Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting or not participating shall also be withdrawn from such registration; provided, however, that, that if by the any withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders Holders, respectively, may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities Securities, in the same proportion used above in determining the underwriter limitationlimitation in this Section 2(c).
Appears in 1 contract
Samples: Registration Rights Agreement (Authentidate Holding Corp)
Underwriting. If the registration Initiating Holder intends to distribute the ------------ Registrable Securities covered by its request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company it shall so advise the Holders Company as a part of the written notice given its request made pursuant to this Section 4.2(a) hereof4.2. In such event, the Company shall include such information in the written notice referred to in Subsection 4.2(a)(i). In such event, if so requested in writing by the Company, the Initiating Holder shall negotiate with an underwriter selected by the Company and reasonably acceptable to the Investor with regard to the underwriting of such requested registration; provided, however, that if the Initiating Holder has not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, the Initiating Holder may select an underwriter of its choice reasonably acceptable to the Company. The right of any Holder to registration pursuant to this Section 4.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All In the event an underwriter is used, the Company shall (together with the Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Companyunderwriting. Notwithstanding any other provision of this Section 4.2, if the managing underwriter determines advises the Initiating Holder in writing that marketing factors require a limitation of the number of shares to be underwrittenunderwritten (an "Underwriter's Cutback"), the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities and shares of Common Stock of other participating security holders ("Other Holders") that may be included in the registration and underwriting shall be allocated among all Holders and such Other Holders thereof in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities and shares of Common Stock held by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such the underwriting, such person he or she may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterInitiating Holder. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; providedIf, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities and shares of Common Stock held by other non-withdrawing Holders and Other Holders, respectively, may be included in such registration (up to the maximum of any limitation limit imposed by the underwriters), then ) the Company shall offer to all such Holders and Other Holders who have included Registrable Securities and shares of Common Stock, respectively, in the registration the right to include additional Registrable Securities and shares of Common Stock in the same proportion used above in determining the underwriter limitationlimitation as set forth above. Any Registrable Securities or shares of Common Stock which are excluded from the underwriting by reason of the underwriter's marketing limitation or withdrawn from such underwriting shall be withdrawn from such registration, except to the extent otherwise permitted or allowed under existing registration rights agreements.
Appears in 1 contract
Samples: Series B Preferred Stock Purchase Agreement (Ia Corp)
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company then they shall so advise the Holders Company as a part of the written notice given their request made pursuant to this Section 4.2(a2.1(a) hereofand the Company shall include such information in the Demand Notice. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to Section 4.2 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The underwriters will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Companyunderwriting. Notwithstanding any other provision of this Section 4.22.1, if the underwriter determines managing underwriters advise the Company in writing that marketing factors require a limitation of the number of shares securities to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))that would otherwise be registered and underwritten pursuant hereto, and the number of shares of then outstanding Registrable Securities that may be included in the registration and underwriting shall be reduced as required by the underwriters and allocated among such the Holders in proportion, as nearly as practicable on a pari passu basis, pro rata basis according to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may each Holder requesting registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration (up to the maximum shall not be reduced unless all other securities of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included are first entirely excluded from the underwriting and registration. Any Registrable Securities in excluded and withdrawn from such underwriting shall be withdrawn from the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationregistration.
Appears in 1 contract
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to Section 2.2 and the Company shall include such information in the written notice given pursuant referred to this in Section 4.2(a) hereof2.2(a). In such event, the The right of any Holder to registration pursuant to Section 4.2 2.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent requested (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 4.22.2, if the underwriter (or the managing underwriter on behalf of the underwriters) determines that marketing factors require a limitation of the number of shares to be underwrittenunderwritten and so advises the Initiating Holders in writing, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company Initiating Holders shall so advise all Holders Holders' (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), underwriting) and the the- number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all such Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities Registrable Securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the underwriter (or managing underwriter on behalf of all of the underwriters) and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.limitation in this Section 2.2(c). If the underwriter (or managing underwriter on behalf of all of the underwriters) has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account in such registration if the underwriters so agree and if the number
Appears in 1 contract
Samples: Stock Restriction, Information Rights and Registration Rights Agreement (PLX Technology Inc)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving by the Company of its securities through an underwriting, then the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a2.3(a)(i) hereof. In such event, the right of any Holder to registration pursuant to this Section 4.2 2.3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company Company, and all the other Holders Other Selling Stockholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.22.3, if the underwriter determines that marketing factors require a limitation of on the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwritingunderwriting some or all of the Registrable Securities held by the Holders or the stock held by Other Selling Stockholders in accordance with this Section 2.3(b). The Company shall so advise all Holders and all Other Selling Stockholders distributing their securities through such underwriting, and (except those Holders who have indicated i) as to the Company their decision not first registration in which Holders are entitled to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))participate pursuant to this Section 2.3, and the number of shares of Registrable Securities and other securities that may be included in the registration and underwriting shall be allocated among all Holders thereof on the basis that shares held by all the Other Selling Stockholders who are not Holders shall first be excluded to the extent required and, if further exclusion is necessary, shares held by the selling Holders shall then be excluded; provided, however, that, as among the respective Other Selling Stockholders as a group on the one hand and the Holders as a group on the other hand suffering such exclusion, the exclusion shall be in proportion, as nearly as practicable, to the amount of securities entitled to inclusion in such registration held by each of the Other Selling Stockholders as a group and each of the Holders at the time of filing the Registration Statement; and (ii) as to all subsequent registrations, the number of shares of Registrable Securities and other securities that may be included in the registration and underwriting shall be allocated among all Other Selling Stockholders and the Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed entitled to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included inclusion in such registration (up to the maximum of any limitation imposed held by the underwriters), then the Company shall offer to all such Other Selling Stockholders and Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.at 7
Appears in 1 contract
Underwriting. If In the event that a registration of which the Company gives notice ------------ pursuant to Section 1.5 is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof1.5(a)(i). In such event, the right of any Holder to registration pursuant to Section 4.2 1.5 shall be conditioned upon such Holder's participation in such the underwriting arrangements required by this Section 1.5, and the inclusion of such Holder's Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, but subject to the Company's reasonable approval. Notwithstanding any other provision of this Section 4.21.5, if the managing underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any holders of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated first to the Series D Holders to the extent of the Series D Registrable Securities held by such Series D Holders, and then among such all other Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in . If the number of Registrable Securities proposed to be sold for underwritten shall be less than the account number of other HoldersSeries D Registrable Securities, then the then the number of Registrable Securities that may be included in the registration and underwriting shall be allocated among the Series D Holders in proportion, as nearly as practicable, to the respective amounts of Series D Registrable Securities held by such Series D Holders at the time of filing the registration statement. For purposes of such allocations, the amount of Registrable Securities allocated to a Holder and its Affiliated Persons or Entities shall be determined by aggregating all Registrable Securities held by such Holder and its Affiliated Persons or Entities. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves To facilitate the allocation of shares in accordance with the terms of any such underwritingabove provisions, such person may elect to withdraw therefrom by written notice to the Company and or the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by underwriters may round the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up shares allocated to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.any
Appears in 1 contract
Samples: Series D Preferred Stock Purchase Agreement (Tredegar Corp)
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company then they shall so advise the Holders Company as a part of the written notice given their request made pursuant to this Section 4.2(a) hereof9.3 and the Company shall include such information in the Request Notice. In such event, the right of any Holder to registration pursuant to Section 4.2 include its Registrable Securities in such Registration shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities being registered and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 4.29.3, if the underwriter determines underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of shares securities to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))which would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced as required by the underwriter(s) and allocated among such the Holders in proportion, as nearly as practicable of Registrable Securities on a pari passu basis, pro rata basis according to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed Then Outstanding held by each Holder requesting registration (including the Initiating Holders); provided, however, that (i) the number of Registrable Securities included in any such Registration is not reduced below thirty percent (30%) of the aggregate number of shares of Registrable Securities for which inclusion has been requested by the Series F Initiating Holders or the Series G Initiating Holders (unless such offering is the Initial Public Offering in which case the Registrable Securities may be excluded beyond this amount if the managing underwriter(s) make the determination described above and no other shareholder’s securities are included in such offering); and (ii) the number of shares of Registrable Securities to be sold for the account of included in such underwriting and Registration shall not be reduced unless all other Holders. No Registrable Securities securities are first entirely excluded from the underwriting and Registration including all shares that are not Registrable Securities and are held by reason any other person, including any person who is an employee, officer or director of the underwriter's marketing limitation shall be included in such registrationCompany or any Subsidiary of the Company. If any Holder disapproves of the terms of any such underwriting, such person Holder may elect to withdraw therefrom by written notice to the Company and the underwriterunderwriter(s), delivered at least ten (10) Business Days prior to the effective date of the registration statement. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be excluded and withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationRegistration.
Appears in 1 contract
Samples: Shareholder Agreement (iQIYI, Inc.)
Underwriting. If the The right of any Holder of Registrable Securities to ------------ include Registrable Securities in a registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof. In such event, the right of any Holder to registration pursuant to Section 4.2 1.2 involving an underwritten public offering shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.21, if the managing underwriter determines or underwriters conclude in their sole discretion that marketing factors require a limitation the total amount of securities which the number Company and any holders of shares securities having registration rights intends to be underwritteninclude in such offering is such as to materially and adversely affect or jeopardize the offering, then the underwriter may (subject to the allocation priority set forth below) exclude some or all Registrable Securities from such registration and underwritingunderwriting some or all of the Registrable Securities requested to be included. The In such event, the Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Restricted Securities through such underwriting ("Non-participating Holders"))requesting registration, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such the Holders of Registrable Securities in proportion, as nearly as practicable on a pari passu basis, proportion to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for held by them and, if a further limitation on the account number of ------- shares is required, the Non-participating securities of the Company held by Holders (or their transferees) of Registrable Securities shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder of Registrable Securities requesting registration disapproves of the terms of any such underwriting, such person Holder may elect to withdraw therefrom by written notice to the Company and the underwriter. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if . If by the withdrawal of such Registrable Securities securities a greater number of shares of Registrable Securities held by other Holders of Registrable Securities may be included in such registration (up to the maximum of any limitation imposed by the underwritersunderwriter), then the Company shall offer to all Holders of Registrable Securities who have included Registrable Securities in the registration the right to include additional Registrable Securities securities in the same proportion used above in determining the underwriter limitationlimitation imposed by the provisions of this Section 1.2(b).
Appears in 1 contract
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of the written notice given pursuant to this Section 4.2(a) hereof. In such event, the right of any Holder to registration their request made pursuant to Section 4.2 2(a). If Other Stockholders request such inclusion, the Holders shall be conditioned upon such Holder's participation in such underwriting and offer to include the inclusion securities of such Holder's Registrable Securities Other Stockholders in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Section 2. The Holders whose shares are to be included in such registration and the extent provided herein. All Holders proposing to distribute their securities through such underwriting Company shall (together with the Company and the other Holders distributing all Other Stockholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the CompanyCompany and reasonably acceptable to the Initiating Holders. Notwithstanding any other provision of this Section 4.22(a), if the underwriter determines representative advises the Holders in writing that marketing factors require a limitation of on the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities securities of the Company held by Other Stockholders shall be excluded from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any extent so required by such limitation. If, after the exclusion of their Registrable Securities through such underwriting ("Non-participating Holders"))shares, and further reductions are still required, the number of shares of Registrable Securities that may be included in the registration and underwriting by each Holder shall be allocated among such Holders in proportion, as nearly as practicable reduced on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders pro rata basis (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in based on the number of Registrable Securities proposed shares held by such Holder), by such minimum number of shares as is necessary to be sold for the account of other Holderscomply with such request. No Registrable Securities or any other securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder Other Stockholder who has requested inclusion in such registration as provided above disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by . If the withdrawal of such Registrable Securities a greater underwriter has not limited the number of Registrable Securities held by or other Holders securities to be underwritten, the Company and officers and directors of the Company may be include its or their securities for its or their own account in such registration if the representative so agrees and if the number of Registrable Securities and other securities which would otherwise have been included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationand underwriting will not thereby be limited.
Appears in 1 contract
Samples: Registration Rights Agreement (Warburg Pincus Equity Partners Lp)
Underwriting. If the Holders initiating the registration request under this paragraph 2 (“Initiating Holders”) intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company then they shall so advise the Holders Company as a part of their request made pursuant to this paragraph 2 and the Company shall include such information in the written notice given pursuant referred to this Section 4.2(a) hereofin paragraph 2(a). In such an event, the right of any Holder to include his Registrable Securities in such registration pursuant to Section 4.2 shall be conditioned conditional upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the initiating Holders and such Holder) to the extent provided herein. All the Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities being registered and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 4.2paragraph 2, if the underwriter determines underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of shares securities to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all the Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))which would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced as required by the underwriter(s) and allocated among such the Holders in proportion, as nearly as practicable of Registrable Securities on a pari passu basis, pro rata basis according to the respective amounts number of Company securities owned the Outstanding Registrable Securities held by such Holders at each Holder requesting registration (including the time of filing the registration statementinitiating Holders); provided, -------- however, in all public offering of securities other than a Qualified IPO, that all the right of the underwriters to exclude shares (including Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transfereesSecurities) shall be excluded from the registration and underwriting prior to any reduction in the number of as described above shall be restricted so that all shares that are not Registrable Securities proposed to 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 sold for the account of other Holders. No excluded from such registration and underwriting before any Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationare so excluded. If any Holder disapproves of the terms of any such underwriting, such person Holder may elect to withdraw therefrom by written notice to the Company and the underwriterunderwriter(s), which notice shall be delivered at least ten (10) Business Days prior to the effective date of the registration statement. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be excluded and withdrawn from such the registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Shareholder Agreements (The9 LTD)
Underwriting. If the registration Initiating Holders intend to distribute the ------------ Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to Section 5(a) and the Company shall include such information in the written notice given pursuant referred to this in Section 4.2(a5(a)(i) hereofabove. In such eventThe Company, the right together with all Holders of any Holder to registration pursuant to Section 4.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting underwriting, shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters managing underwriter(s) selected for such underwriting by a majority in interest of the Initiating Holders, which underwriter(s) shall be reasonably acceptable to the Company. Notwithstanding any other provision of this Section 4.25, if the underwriter determines managing underwriter(s) have informed the Company and the Initiating Holders in writing that marketing factors require a limitation of in such underwriter's or underwriters' opinion the total number of shares securities which the Holders and any other person desiring to be underwritten, the underwriter may exclude some or all Registrable Securities from participate in such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated intend to include in such offering is such as to affect adversely the success of such offering, including the price at which such securities can be sold, then the Company their decision not will be required to distribute any include in such registration only the amount of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall which it is so advised should be included in such registration. In such event, securities shall be registered in such registration in the following order of priority: (i) first, the securities ----- which have been requested to be included in such registration by the Holders of Registrable Securities pursuant to this Agreement and the Senior Note Warrant Shares sought to be included in such registration pursuant to the exercise of "piggy-back" registration rights under the Warrant Registration Rights Agreement pro rata between the Holders of Registrable Securities and the holders of Senior Note Warrant Shares based upon the aggregate amount of securities then held, (ii) second, provided that no securities sought to be ------ included by the Holders of Registrable Securities and the holders of the Senior Note Warrant Shares have been excluded from such registration, the securities of other persons entitled to exercise "piggy-back" registration rights pursuant to contractual commitments of the Company (pro rata based on the amount of securities sought to be registered by such persons) and (iii) third, provided ----- that no securities of any other person sought to be included therein have been excluded from such registration, securities to be offered and sold for the account of the Company. If the Company or any Holder in its sole discretion disapproves of the terms of any such the underwriting, such person it may elect to withdraw therefrom by written notice to the Company underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Stockholder Rights Agreement (Covad Communications Group Inc)
Underwriting. If the registration Initiating Holders intend to distribute the ------------ Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to Section 5.1(a), and the Company shall include such information in the written notice given pursuant to this Section 4.2(a) hereof5.1(a)(i). The managing underwriter will be selected by a majority in interest of the Initiating Holders, provided that such managing underwriter is reasonably acceptable to the Company. In such event, the right of any Holder to include his Registrable Securities in such registration pursuant to Section 4.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Companymanaging underwriter. Notwithstanding any other provision of this Section 4.25.1, if the managing underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))Securities, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such all Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for . Neither the account Company nor any other holders of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction Company securities may participate in the number of Registrable Securities proposed offering if any Holders have been cut back pursuant to be sold for the account of other Holdersthis Section 5.1(b). No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of and such Registrable Securities a greater number of Registrable Securities held by other Holders may shall continue to be included in such registration (up subject to the maximum terms of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationthis Agreement including Section 6 hereof.
Appears in 1 contract
Samples: Investor Rights Agreement (Centillium Communications Inc)
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to this Section, and the Company shall include such information in the written notice given pursuant referred to this Section 4.2(ain subsection (b)(i) hereofabove. In such event, the The right of any Holder to registration pursuant to this Section 4.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder with respect to such participation and inclusion) to the extent provided herein. All A Holder may elect to include in such underwriting all or a part of the Registrable Securities he holds. The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters (the "UNDERWRITER") selected for such underwriting by sixty percent (60%) of the Initiating Holders and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 4.2Section, if the underwriter Underwriter determines that marketing factors require a limitation of on the number of shares to be underwritten, the underwriter Underwriter may exclude some or all (subject to the allocation priority set forth below) limit the number of Registrable Securities from such to be included in the registration and underwritingunderwriting to not less than fifty percent (50%) of the securities which Holders have requested be included therein. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any holders of their Registrable Securities through such underwriting ("Non-participating Holders"))securities requesting registration, and the number of shares of Registrable Securities securities that may are entitled to be included in the registration and underwriting shall be allocated pro rata among such Holders in proportion, as nearly as practicable holders on a pari passu basis, to the respective amounts basis of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting then held by reason of the underwriter's marketing limitation shall be included in such registrationholders. If any Holder disapproves of the terms of any such underwriting, such person holder may elect to withdraw therefrom by written notice to the Company and the underwriterUnderwriter. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by . If the withdrawal of such Registrable Securities a greater Underwriter has not limited the number of Registrable Securities held by or other Holders securities to be underwritten, the Company may be include its securities for its own account in such registration if the Underwriter so agrees and if the number of Registrable Securities and other securities which would otherwise have been included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationand underwriting will not thereby be limited.
Appears in 1 contract
Samples: Registration Rights Agreement (Clickservice Software LTD)
Underwriting. If the Holders initiating the registration request under this Section 9.3 (the “Initiating Holders”) intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company then they shall so advise the Holders Company as a part of the written notice given their request made pursuant to this Section 4.2(a) hereof9.3 and the Company shall include such information in the Request Notice. In such event, the right of any Holder to include its Registrable Securities in such registration pursuant to Section 4.2 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities being registered and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 4.29.3, if the underwriter determines underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of shares securities to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))which would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced as required by the underwriter(s) and allocated among such the Holders in proportion, as nearly as practicable of Registrable Securities on a pari passu basis, pro rata basis according to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed then outstanding held by each Holder requesting registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be sold for the account of included in such underwriting and registration shall not be reduced unless any other Holders. No Registrable Securities securities are first entirely excluded from the underwriting and registration including, without limitation, Ordinary Shares or all other shares that are not Registrable Securities and are held by reason any other person, including, without limitation, any person who is an employee, consultant, officer or director of the underwriter's marketing limitation shall Company or any subsidiary of the Company; provided further, that at least twenty-five percent (25%) of shares of Registrable Securities requested by the Holders to be included in such registrationunderwriting and registration shall be so included. If any Holder disapproves of the terms of any such underwriting, such person Holder may elect to withdraw therefrom by written notice to the Company and the underwriterunderwriter(s), delivered at least ten (10) Business Days prior to the effective date of the registration statement. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be excluded and withdrawn from such the registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If the registration Requesting Holders intend ------------ to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company then they shall so advise the Holders Company as a part of the written notice given their request made pursuant to this Section 4.2(a2.2, and the Company shall include such information in the written notice referred to in Section 2.2(b) hereof. In such event, the The right of any Holder to registration pursuant to this Section 4.2 2.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent requested and to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision representative of this Section 4.2, if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute If any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares Holder of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such the underwriting, then such person may elect to withdraw therefrom by written notice to the Company Company, the underwriter and the underwriterRequesting Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if if, by the withdrawal of such Registrable Securities Securities, a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining to determine the underwriter limitationlimitation in this Section 2.2(c). If the underwriter has not limited the number of Registrable Securities to be underwritten, then the Company and its executive officers, and such other Persons as are determined by the Board of Directors, their successors, and their assigns ("Other Selling Stockholders"), may include securities for their own account in such registration if the underwriter so agrees and if the number of Registrable Securities held by the Holders that would otherwise have been included in such registration and underwriting will not thereby be limited for any reason, including but not limited to the price for which the Registrable Securities will be sold. To the extent that the underwriter wishes to limit the number of shares to be included in the registration on behalf of the Company and the Other Selling Stockholders, the shares of Common Stock to be registered held by the Other Selling Stockholders shall be excluded from such offering prior to excluding any shares held by the Company and those held by the Company shall be excluded prior to excluding any Registrable Securities held by the Holders.
Appears in 1 contract
Samples: Stockholders Agreement (Monsanto Co)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereofsubsection 3(a)(i). In such event, event the right of any Holder to registration pursuant to Section 4.2 3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding Not- withstanding any other provision of this Section 4.23, if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all limit the number of Registrable Securities from such to be included in the registration and underwriting. The Notwithstanding the foregoing, in no event shall the amount of securities of the selling Holders included in the offering be reduced below fifteen percent (15%) of the total amount of the securities included in such offering, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other shareholders' securities are included. In the event of a cutback by the underwriters of the number of Registrable Securities to be included in the registration and underwriting, the Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))which would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated first among all of such Holders Holders, in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders. If, after such Holders at participate to the time full extent they desire in such registration and underwriting, the underwriters determine that additional shares of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to may be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in included, the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation such shares shall be included in such registrationallocated as the Company determines. If any Holder disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom by written notice to the Company and the underwriter. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Samples: Stock Purchase Agreement (Xiox Corp)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving by the Company of its securities through an underwriting, then the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a2.3(a)(i) hereof. In such event, the right of any Holder to registration pursuant to this Section 4.2 2.3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company Company, and all the other Holders Other Selling Stockholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.22.3, if the underwriter determines that marketing factors require a limitation of on the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwritingunderwriting some or all of the Registrable Securities held by the Holders or the stock held by Other Selling Stockholders in accordance with this Section 2.3(b). The Company shall so advise all Holders and all Other Selling Stockholders distributing their securities through such underwriting, and (except those Holders who have indicated i) as to the Company their decision not first registration in which Holders are entitled to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))participate pursuant to this Section 2.3, and the number of shares of Registrable Securities and other securities that may be included in the registration and underwriting shall be allocated among all Holders thereof on the basis that shares held by all the Other Selling Stockholders who are not Holders shall first be excluded to the extent required and, if further exclusion is necessary, shares held by the selling Holders shall then be excluded; provided, however, that, as among the respective Other Selling Stockholders as a group on the one hand and the Holders as a group on the other hand suffering such exclusion, the exclusion shall be in proportion, as nearly as practicable, to the amount of securities entitled to inclusion in such registration held by each of the Other Selling Stockholders as a group and each of the Holders at the time of filing the Registration Statement; and (ii) as to all subsequent registrations, the number of shares of Registrable Securities and other securities that may be included in the registration and underwriting shall be allocated among all Other Selling Stockholders and the Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned entitled to inclusion in such registration held by all such Other Selling Stockholders and Holders at the time of filing the registration statement; providedRegistration Statement. For purposes of the apportionment provisions in clause (i) above, -------- howeverfor any selling Holder that is a partnership or corporation, that all Registrable Securities proposed the partners, retired partners, and shareholders of such Holder, the estate and family members of such partners and retired partners, and any trusts for the benefit of any of the foregoing persons shall be deemed to be sold for the account of ------- the Non-participating Holders (or their transferees) a single "selling Holder," and any pro rata reduction with respect to such selling Holder shall be excluded from based upon the registration and underwriting prior to any reduction in the aggregate number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting shares carrying registration rights owned by reason of the underwriter's marketing limitation shall be all entities and individuals included in such registration"selling Holder," as defined in this sentence. If any Other Selling Stockholder or Holder disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other Any securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If In the event that the Initiating Holders specify that a registration of which the Company gives notice ------------ pursuant to Section 2.4 is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof2.4(a)(i). In such event, the right of any Holder to registration pursuant to Section 4.2 2.4 shall be conditioned upon such Holder's participation in such the underwriting arrangements required by this Section 2.4, and the inclusion of such Holder's Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters of nationally recognized standing selected for such underwriting by a majority in interest of the Initiating Holders, but subject to the Company's reasonable approval. Notwithstanding any other provision of this Section 4.22.4, if the managing underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders holders of Registrable Securities who have indicated elected to the Company their decision not to distribute any of their Registrable Securities through participate in such underwriting ("Non-participating Holders")), offering and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such all Holders thereof in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the managing underwriter and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from registration, and such Registrable Securities shall not be transferred in a public distribution prior to 120 days after the effective date of such registration; provided, however, that, if or such other shorter period of time as the underwriters may permit. If by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation then imposed by the underwriters), then the Company shall offer to all Holders who Holders, if any, whose shares have included Registrable Securities in been excluded from the registration by the terms of this paragraph, the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationlimitation in this Section 2.4(b) up to the limitation then imposed by the Underwriters.
Appears in 1 contract
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to Section 3.4 and the Company shall include such information in the written notice given pursuant referred to this in Section 4.2(a) hereof3.4(a)(i). In such event, the The right of any Holder to registration pursuant to Section 4.2 3.4 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting to the extent provided herein. All The Company (together with all Holders and other parties proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) shall enter into an underwriting agreement in customary form with the underwriter or underwriters representative(s) of the underwriter(s) (collectively, the “Underwriter’s Representative”) selected for such underwriting by the CompanyInitiating Holders. Notwithstanding any other provision of this Section 4.2, If the Underwriter’s Representative (or the Company after consultation with the Initiating Holders if the underwriter determines offering is not underwritten) advises the Initiating Holders in writing that it has determined in good faith that the marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration Company and underwriting. The Company the Underwriter’s Representative shall so advise the Initiating Holders and all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))Securities, and the Underwriter’s Representative may limit the number of shares of Registrable Securities that may to be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basis, pro rata basis based upon the total number of Registrable Securities entitled to registration held by the Holders exercising their respective amounts of Company securities owned by such Holders at the time of filing the registration statementrights under Section 3.4(a); provided, -------- however, that all the number of shares of Registrable Securities to be included in such underwriting by the Investors shall not be reduced unless all other securities proposed to be sold for by the account of ------- Company or persons other than the Non-participating Holders (or their transferees) shall be Investors are first entirely excluded from the registration and underwriting prior to underwriting. The number of securities includable by any reduction Holder or other person may, in the number discretion of Registrable Securities proposed the underwriters, be rounded to be sold for the account of other Holdersnearest one hundred (100) shares. No Registrable Securities securities excluded from the underwriting by reason of the underwriter's ’s marketing limitation shall be included in such registration. If any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person may elect to withdraw therefrom by written notice to the Company Company, the Underwriter’s Representative and the underwriterInitiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other participating Holders may be included in such registration (up to the maximum of any limitation imposed by the underwritersUnderwriter’s Representative), then the Company shall offer to all Holders who have included allocate such greater number of Registrable Securities to such Holders in proportion, as nearly as practicable, to the registration the right to include additional respective amount of Registrable Securities held by such participating Holders. If the Underwriter’s Representative has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account or for the account of other stockholders of the Company in such registration if the same proportion used above in determining the underwriter limitationUnderwriter’s Representative so agrees.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof2.3(a). In such event, event the right of any Holder to registration pursuant to Section 4.2 2.3 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwritingCompany) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.22.3, if the managing underwriter or Company determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may limit or completely exclude some or all the Registrable Securities from and other securities to be distributed through such underwriting; provided, however, that Registrable Securities to be included in such registration may not be limited to less than 30% of the total amount of securities to be included in any registration other than the registration for Company’s initial underwritten public offering of its securities and provided, further that number of shares of Registrable Securities of the Holders to be included in such underwriting shall not be reduced unless all other securities (excluding those held by the Company) are first entirely excluded from the underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company distributing their decision not to distribute any of their Registrable Securities securities through such underwriting of such limitation ("Non-participating Holders"))or exclusion, if applicable) and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated (if applicable) as follows: (i) first to holders of Series AA Preferred, Series BB Preferred, Series DD Preferred and Series EE Preferred or Common Stock issued or issuable upon conversion of Series AA Preferred, Series BB Preferred, Series DD Preferred and Series EE Preferred, (ii) next, to holders of Series CC Preferred (or Common Stock issued or issuable upon conversion of Series CC Preferred) and holders of Converted Preferred Stock, and (iii) then among such all other Holders thereof in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided. To facilitate the allocation of shares in accordance with the above provisions, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in Company may round the number of Registrable Securities proposed shares allocated to be sold for any Holder or holder to the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationnearest 100 shares. If any Participating Holder disapproves of the terms of any such underwriting, such person Participating Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The Registrable Securities and/or other Any securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided. If shares are withdrawn from registration, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities persons retaining the right to include securities in the registration the right to include additional securities in the registration, with such shares being allocated among all such Participating Holders in proportion, as nearly as practicable, to the respective amounts of Registrable Securities in held by such Participating Holders at the same proportion used above in determining time of filing the underwriter limitationregistration statement.
Appears in 1 contract
Underwriting. If the registration of which the Company gives ------------ notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof2.3(a)(i). In such event, event the right of any Holder to registration pursuant to this Section 4.2 2.3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (shall, together with the Company and the other Holders parties distributing their securities through such underwriting) , enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.22.3, if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all limit the number of Registrable Securities to be included in the registration and underwriting, or may exclude Registrable Securities entirely from such registration and underwritingunderwriting subject to the terms of this Section 2.3. The Company shall so advise all Holders (except those Holders who have indicated to holders of the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))Company's securities that would otherwise be registered and underwritten pursuant hereto, and the number of shares of such securities, including Registrable Securities Securities, that may be included in the registration and underwriting shall be allocated in the following manner: shares, other than Registrable Securities and other securities that have contractual rights with respect to registration similar to those provided for in this Section 2.3, requested to be included in such registration by stockholders shall be excluded, and if a limitation on the number of shares is still required, the number of Registrable Securities and other securities that have contractual rights with respect to registration that may be included shall be allocated among such Holders the holders thereof in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company Registrable Securities and such other securities owned with such contractual rights held by each such Holders holder at the time of filing the registration statement; providedRegistration Statement. For purposes of any such underwriter cutback, -------- however, that all Registrable Securities proposed and other securities held by any holder that is a partnership, limited liability company or corporation shall also include any Registrable Securities held by the partners, retired partners, members, stockholders or affiliated entities of such holder, or the estates and family members of any such partners, retired partners, members and any trusts for the benefit of any of the foregoing persons, and such holder and other persons shall be deemed to be sold for the account of ------- the Non-participating Holders (or their transferees) a single "selling holder," and any pro rata reduction with respect to such "selling holder" shall be excluded from based upon the aggregate amount of shares carrying registration rights owned by all entities and underwriting prior to any reduction individuals included in the number of Registrable Securities proposed to be sold for the account of other Holderssuch "selling holder", as defined in this sentence. No Registrable Securities securities excluded from the underwriting by reason of the underwriter's underwriters marketing limitation shall be included in such registration. Nothing in this Section 2.3(b) is intended to diminish the number of securities to be included by the Company in the underwriting. If any Holder disapproves of the terms of any such the underwriting, such person it may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof4.2(a)(i). In such event, event the right of any Holder to registration pursuant to this Section 4.2 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (shall, together with the Company and the other Holders parties distributing their securities through such underwriting) , enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.2, if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all limit the number of Registrable Securities from such to be included in the registration and underwriting, subject to the terms of this Section 4.2. The Company shall so advise all Holders (except those Holders who have indicated to holders of the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))Company’s securities that would otherwise be registered and underwritten pursuant hereto, and the number of shares of such securities, including Registrable Securities Securities, that may be included in the registration and underwriting shall be allocated among such Holders first, (x) in proportion, as nearly as practicable on the case of a pari passu basisCompany Registration, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; providedCompany, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders or (or their transfereesy) shall be excluded from the registration and underwriting prior to any reduction in the case of a Demand Registration, the Initiating Holder thereof and such other Third Party Holders contractually entitled to priority with such Initiating Holder distributing their securities through such underwriting on a pro rata basis based on the total number of Registrable Securities proposed held by such Initiating Holder and such Third Party Holders distributing their securities through such underwriting, and second, (1) in the case of a Company Registration, to the Holders and the Third Party Holders distributing their securities through such underwriting on a pro rata basis based on the total number of Registrable Securities held by such Holders and Third Party Holders distributing their securities through such underwriting, or (2) in the case of a Demand Registration, the Holders and such other Third Party Holders not contractually entitled to priority with the Initiating Holder distributing their securities through such underwriting on a pro rata basis based on the total number of Registrable Securities held by such Initiating Holder and such Third Party Holders distributing their securities through such underwriting. With respect to a Company Registration, no such reduction shall reduce the securities being offered by the Company for its own account to be sold for included in the account of other Holdersregistration and underwriting. No Registrable Securities securities excluded from the underwriting by reason of the underwriter's ’s marketing limitation shall be included in such registration. If any Holder disapproves For the avoidance of doubt, nothing in this Section 4.2(b) is intended to diminish the terms number of any such underwriting, such person may elect securities to withdraw therefrom be included by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationunderwriting.
Appears in 1 contract
Samples: Management Stockholders Agreement (IPC Systems Holdings Corp.)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the The Company shall so advise the Holders as a part of the written notice given managing underwriters for any Underwritten Offering proposed under the Piggyback Registration Statement. The right of any such Holder’s Registrable Shares to be included in any Piggyback Registration Statement pursuant to this Section 4.2(a2(b) hereof. In such event, the right of any Holder to registration pursuant to Section 4.2 shall be conditioned upon such Holder's ’s participation in such underwriting Underwritten Offering and the inclusion of such Holder's ’s Registrable Securities Shares in the underwriting Underwritten Offering to the extent provided herein. All Holders proposing to distribute their securities Registrable Shares through such underwriting Underwritten Offering shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or managing underwriters selected for such underwriting and complete and execute any questionnaires, powers of attorney, indemnities, securities escrow agreements and other documents reasonably required under the terms of such underwriting, and furnish to the Company such information in writing as the Company may reasonably request for inclusion in the Registration Statement; provided, however, 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 as are customary and reasonably requested by the Companyunderwriters. Notwithstanding any other provision of this Section 4.2Agreement, if the underwriter determines managing underwriters determine in good faith that marketing factors require a limitation of on the number of shares to be underwrittenincluded, then the underwriter managing underwriters may exclude some or all shares (including Registrable Securities Shares) from such registration the Piggyback Registration Statement and underwriting. The Company the Underwritten Offering, and any Shares included in the Piggyback Registration Statement and the Underwritten Offering shall so advise all Holders (except those Holders who have indicated be allocated, first, to the Company their decision not Company, and second, to distribute any Person exercising demand registration rights that are the basis for such registration, and third, to each of the Holders requesting inclusion of their Registrable Securities through Shares in such underwriting ("Non-participating Holders")), and Piggyback Registration Statement on a pro rata basis based on the total number of such shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed requested to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registrationincluded. If any Holder disapproves of the terms of any such underwritingUnderwritten Offering, such person 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 Piggyback Registration Statement. The Any Registrable Securities and/or other securities so Shares excluded or withdrawn from such underwriting Underwritten Offering shall also be excluded and withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationPiggyback Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Rosetta Resources Inc.)
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company then they shall so advise the Holders Company as a part of the written notice given their request made pursuant to this Section 4.2(a2.1(a) hereofand the Company shall include such information in the Demand Notice. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to Section 4.2 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The underwriters will be selected by a majority in interest of the Initiating Holders and shall be reasonably acceptable to the Company. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Companyunderwriting. Notwithstanding any other provision of this Section 4.22.1, if the underwriter determines managing underwriters advise the Company in writing that marketing factors require a limitation of the number of shares securities to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))that would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced as required by the underwriters and allocated among such the Holders in proportion, as nearly as practicable on a pari passu basis, pro rata basis according to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may each Holder requesting registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration (up to the maximum shall not be reduced unless all other securities of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included are first entirely excluded from the underwriting and registration. Any Registrable Securities in excluded and withdrawn from such underwriting shall be withdrawn from the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationregistration.
Appears in 1 contract
Underwriting. If the Holders initiating the registration request under this Section 3.3 (the “Initiating Holders”) intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company then they shall so advise the Holders Company as a part of the written notice given their request made pursuant to this Section 4.2(a) hereof3.3 and the Company shall include such information in the Request Notice referred to in Section 3.3(a). In such eventthe event of an underwritten offering, the right of any Holder to include its Registrable Securities in such registration pursuant to Section 4.2 shall be conditioned upon such Holder's ’s participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities being registered and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 4.23.3, if the underwriter determines underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of shares securities to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))which would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced as required by the underwriter(s) and allocated among such the Holders in proportion, as nearly as practicable of Registrable Securities on a pari passu basis, pro-rata basis according to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed then outstanding held by each Holder requesting registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be sold included in such underwriting and registration shall not be reduced (i) by more than (x) seventy-five percent (75%) for the account of an offering that is not an IPO and (y) one hundred percent (100%) for an IPO, and (ii) unless all other Holders. No Registrable Securities securities are first entirely excluded from the underwriting and registration including all shares that are not Registrable Securities and all shares that are held by reason any other Person, including any Person who is an employee, officer or director of the underwriter's marketing limitation shall Company or any Subsidiary of the Company. Further, if, as a result of such underwriter cutback, the Holders cannot include in the IPO all of the Registrable Securities that they have requested to be included in therein, then such registrationRegistration shall not be deemed to constitute one of the three (3) demand Registrations to which the Holders are entitled pursuant to this Section 3. If any Holder disapproves of the terms of any such underwriting, such person Holder may elect to withdraw therefrom by delivering a written notice to the Company and the underwriterunderwriter(s), delivered at least ten (10) Business Days prior to the effective date of the registration statement. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be excluded and withdrawn from such the registration; provided. For any Holder that is a partnership, however, that, if by the withdrawal Holder and the partners and retired partners of such Registrable Securities 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, and for any Holder that is a greater number corporation, the Holder and all corporations that are affiliates of Registrable Securities held such Holder, shall be deemed to be a single “Holder”, and any pro-rata reduction with respect to such “Holder” shall be based upon the aggregate amount of shares carrying registration rights owned by other Holders may be all entities and individuals included in such registration (up to the maximum of any limitation imposed by the underwriters)“Holder”, then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationas defined herein.
Appears in 1 contract
Underwriting. If the Holders initiating the registration request under this Section 3.2 (the “Initiating Holders”) intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company then they shall so advise the Holders Company as a part of the written notice given their request made pursuant to this Section 4.2(a) hereof3.2 and the Company shall include such information in the Request Notice. In such event, the right of any Holder to include its Registrable Securities in such registration pursuant to Section 4.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's ’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities being registered (voting together as a single class on an as-converted basis) and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 4.23.2, if the underwriter determines underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of shares securities to be underwritten, then the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))which would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced as required by the underwriter(s) and allocated among such the Holders in proportion, as nearly as practicable of Registrable Securities on a pari passu basis, pro rata basis according to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed then outstanding held by each Holder requesting registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be sold for the account of included in such underwriting and registration shall not be reduced unless all other Holders. No Registrable Securities securities are first entirely excluded from the underwriting and registration including, without limitation, all shares that are not Registrable Securities and are held by reason any other person, including, without limitation, any person who is an employee, officer, Director, consultant or holder of the underwriter's marketing limitation shall Ordinary Shares of the Company or any Subsidiary of the Company; and provided further, that at least thirty percent (30%) of the Registrable Securities requested by the Holders to be included in such registrationunderwriting and registration shall be so included. If any Holder disapproves of the terms of any such underwriting, such person Holder may elect to withdraw therefrom by written notice to the Company and the underwriterunderwriter(s), delivered at least five (5) days prior to the printing and delivery of, or other dissemination of, a preliminary prospectus, or similar document for use in the Company’s road show. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be excluded and withdrawn from such the registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereof5(a)(i). In such event, event the right of any Holder to registration pursuant to Section 4.2 5(a) shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's the Registrable Securities such Holder elects to register in the such underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwritingCompany) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision the provisions of this Section 4.25, if the underwriter determines that marketing factors require a limitation of the total number of shares to be underwritten, underwritten or a limitation of the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the total number of shares of Registrable Securities to be underwritten, the number of shares that may be included in the registration and underwriting shall be allocated among such Holders in proportionallocated, as nearly as practicable on a pari passu basisfirst, to the respective amounts Company; second, on a pro rata basis to all Holders based on the total number of Registrable Securities held by each Holder; and third, to any shareholder of the Company (other than a Holder) on a pro rata basis. No such reduction shall reduce the amount of securities owned by such of the selling Holders at the time of filing included in the registration statement; providedbelow 25% of the total amount of securities included in such registration, -------- howeverunless such offering is the Initial Public Offering of the Company's Common Stock under the Securities Act and such registration does not include shares of any other selling shareholders, that in which event any or all of the Registrable Securities of the Holders may be excluded in accordance with the immediately preceding sentence. In the event of such a "cut back" allocation to the Holders, Registrable Securities held by Special Holders shall be allocated in the aggregate (i) 10% of the allocation to all Holders as a group and (ii) a portion of the remaining 90% of such allocation equal to the ratio of the number of Registrable Securities sought to be included in such registration by Special Holders to the number of Registrable Securities sought to be included in such registration by all Holders. In no event will shares of any other selling shareholder be included in such registration which would reduce the number of shares which may be included by Holders without the written consent of Holders of not less than 80% of the Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holdersoffering. No Registrable Securities stock excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of Registrable Securities determines not to participate in any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided. Notwithstanding the foregoing provisions, however, that, if by the withdrawal of such Registrable Securities a greater number Company may withdraw any registration statement referred to in this Section 5 without thereby incurring any liability to the holders of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationSecurities.
Appears in 1 contract
Samples: Registration Rights Agreement (Servicesoft Technologies Inc)
Underwriting. If the registration of which the Company gives ------------ notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 4.2(a) hereofsubsection 1.3(a)(i). In such event, event the right of any Holder to registration pursuant to Section 4.2 1.3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.21.3, if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all limit the number of Registrable Securities from such to be included in the registration and underwriting (i) completely, in the case of the Company's initial public offering, or (ii) to not less than 20% of the shares to be included in any other registration that is solely for the account of the Company; provided, that in each case, the registration does not include shares of any other selling shareholder In the event of a cutback by the underwriters of the number of Registrable Securities to be included in the registration and underwriting. The , the Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders"))which would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all of such Holders in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such person he may elect to withdraw therefrom by written notice to the Company and the underwriter. The Any Registrable Securities and/or other securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Underwriting. If the registration of with respect to which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders Holder as a part of the written notice given pursuant to this Section 4.2(a) hereof4(a)(i). In such event, the right of any the Holder to registration pursuant to this Section 4.2 shall be conditioned upon such the Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (The Holder shall, together with the Company and the other Holders distributing their securities through such underwriting) Company, enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 4.2, if If the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who have indicated to the Company their decision not to distribute any of their Registrable Securities through such underwriting ("Non-participating Holders")), and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders in proportion, as nearly as practicable on a pari passu basis, to the respective amounts of Company securities owned by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to any reduction in the number of Registrable Securities proposed to be sold for the account of other Holders. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such person the Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The Registrable Securities and/or other Any securities so excluded or withdrawn from such underwriting shall also be withdrawn from such registration. Notwithstanding any provision contained herein to the contrary, if the managing underwriter or underwriters of the registration in which the Company gives notice under this Section 4 shall advise the Company in writing that, in its opinion, the total amount of Registrable Securities that the Holder(s) request to include in such registration, together with any other securities with similar incidental or piggyback registration rights (collectively, the "REQUESTED SECURITIES") is sufficiently large to materially and adversely affect the success of such registration, then the amount and kind of Requested Securities to be offered for the accounts of any Holder whose shares of Requested Securities were requested to be included in such registration shall be reduced pro rata with respect to each such Holder to the extent necessary to reduce the total amount of securities to be included in such registration to the amount recommended by such managing underwriter or underwriters; provided, however, thatthat such reduction shall not include the following: (i) if the registration initially occurs at the insistence of the Company, if shares to be issued by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration Company; or (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in ii) if the registration occurs due to a demand registration right, including the right to include additional Registrable Securities Demand Registration provided in Section 2, shares of the same proportion used above in determining the underwriter limitationHolder(s) making that demand.
Appears in 1 contract
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to Section 2(a) and the Company shall include such information in the written notice given pursuant referred to this Section 4.2(a) hereofin subsection 2(a)(i). In such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within 20 days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice. The right of any Holder to registration pursuant to Section 4.2 2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 4.22, if the underwriter determines advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company Initiating Holders shall so advise all Holders (except those Holders of Registrable Securities who have indicated elected to the Company their decision not to distribute any of their Registrable Securities through participate in such underwriting ("Non-participating Holders"))offering, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among such Holders requesting registration in proportion, as nearly as practicable on a pari passu basispracticable, to the respective amounts of Company securities owned Registrable Securities held by such Holders at the time of filing the registration statement; provided, -------- however, that all Registrable Securities proposed to be sold for the account of ------- the Non-participating Holders (or their transferees) shall be excluded from the registration and underwriting prior to Holders. If any reduction in the number Holder of Registrable Securities proposed disapproves of the terms of the underwriting, he may elect to be sold for withdraw therefrom by written notice to the account of other Company, the underwriter and the Initiating Holders. No Any Registrable Securities which are excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities and/or other securities so or withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by . If the withdrawal of such Registrable Securities a greater underwriter has not limited the number of Registrable Securities held by to be underwritten, the Company, employees of the Company and other Holders holders of the Company's Common Stock may be include securities for its (or their) own account in such registration if the underwriter so agrees and if the number of Registrable Securities which would otherwise have been included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used above in determining the underwriter limitationand underwriting will not thereby be limited.
Appears in 1 contract
