Common use of Underwritten Shelf Takedown Clause in Contracts

Underwritten Shelf Takedown. (a) If, in the case of an offering pursuant to a Shelf Registration Statement filed pursuant to Section 2.1 and the Seller so elects (or if the Seller has not delivered written notice to effect an underwritten offering pursuant to this Agreement within ninety (90) after the date hereof, then if Purchaser so elects), such offering shall, by written notice delivered to the Purchaser or the Seller (as applicable), be in the form of a Block Trade (subject in any event to Section 4.2). In the event of a Block Trade pursuant to this Section 3.2 (subject in any event to Section 4.2), (1) the electing party shall (i) give at least ten (10) Business Days’ prior notice in writing of such transaction to the other party (which notice may be given prior to the filing of the Shelf Registration Statement, provided that the Purchaser shall have no obligation to effect a Block Trade until the Shelf Registration Statement has been filed); and (ii) identify the potential underwriter(s) in such notice with contact information for such underwriter(s) for such Block Trade, which underwriter(s) shall be an investment banking firm(s) of national standing and shall be subject to the Purchaser’s reasonable approval and (iii) identify the total number of Eligible Securities expected to be offered and sold in the Block Trade and the applicable Selling Holders, and (2) each party shall use reasonable best efforts to cooperate with the other party in connection with the completion of such Block Trade. For the avoidance of doubt, the Shelf Registration Statement shall not be deemed available for use by the Holders for purposes of this Section 3.2(a) during any Blackout Period. (b) In the case of an underwritten offering, the Purchaser and Selling Holders shall enter into and perform their respective obligations under an underwriting agreement with such underwriters for such offering, with such agreement to contain such representations and warranties by the Purchaser and Selling Holders and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, taking into account the Purchaser’s prior underwritten offerings, which may include, without limitation, indemnities and contribution to the effect and to the extent provided in Article VI hereof and the provision of independent certified public accountants’ letters to the effect and to the extent provided in Section 4.1(f) hereof, and any other documents or certificates customary in similar offerings. The Holders of Eligible Securities on whose behalf such securities are to be distributed by such underwriters shall be parties to any such underwriting agreement and the representations and warranties by, and the other agreements on the part of, the Purchaser to and for the benefit of such underwriters shall also be made to and for the benefit of such holders of such securities, but only to the extent such representations and warranties and other agreements are customarily made by issuers to selling stockholders in secondary underwritten public offerings.

Underwritten Shelf Takedown. (a) IfSubject to Section 2.4 and Section 3.4, in the case of an offering pursuant to at any time that a Shelf Registration Statement filed is effective, a Holder of at least 30% of the then-outstanding number of Registrable Securities, any of the Sponsor Members or the Sponsor (such Holder or the Sponsor in such capacity, a “Demanding Holder”) may request to sell all or part of its Registrable Securities in an Underwritten Offering that is registered pursuant to Section 2.1 and the Seller so elects (or if the Seller has not delivered written notice to effect an underwritten offering pursuant to this Agreement within ninety (90) after the date hereof, then if Purchaser so elects), such offering shall, by written notice delivered to the Purchaser or the Seller (as applicable), be in the form of a Block Trade (subject in any event to Section 4.2). In the event of a Block Trade pursuant to this Section 3.2 (subject in any event to Section 4.2), (1) the electing party shall (i) give at least ten (10) Business Days’ prior notice in writing of such transaction to the other party (which notice may be given prior to the filing of the Shelf Registration Statement, provided that the Purchaser shall have no obligation to effect a Block Trade until the Shelf Registration Statement has been filed(an “Underwritten Shelf Takedown”); and provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown for a Holder of at least 30% of the then-outstanding number of Registrable Securities if such offering shall include Registrable Securities proposed to be sold by such Demanding Holder, either individually or together with other Demanding Holders, yielding aggregate gross proceeds in excess of $50,000,000 (iibased on then-current market prices) identify (the potential underwriter(s) in such “Minimum Amount”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice with contact information for such underwriter(s) for such Block Tradeto the Company, which underwriter(s) shall be an investment banking firm(s) of national standing and shall be subject to specify the Purchaser’s reasonable approval and (iii) identify the total number of Eligible Registrable Securities expected to be offered and sold in under the Block Trade Shelf Takedown. The Company shall have the right to select the Underwriter for such offering (which shall consist of one or more reputable nationally recognized investment banks. Notwithstanding the foregoing, (i) the Sponsor and the applicable Selling Holders, Sponsor Members (taken together) and (2ii) each party shall use reasonable best efforts to cooperate with the other party Demanding Holders (taken together) may each demand not more than two Underwritten Shelf Takedowns, in connection with the completion each case pursuant to this Section 2.1.4 in any twelve (12) month period, for an aggregate of such Block Tradenot more than four Underwritten Shelf Takedowns pursuant to this Section 2.1.4 in any twelve (12) month period. For the avoidance of doubt, the Shelf The Company may effect any Underwritten Offering pursuant to any then effective Registration Statement shall not be deemed that is then available for use by the Holders for purposes of this Section 3.2(a) during any Blackout Period. (b) In the case of an underwritten offering, the Purchaser and Selling Holders shall enter into and perform their respective obligations under an underwriting agreement with such underwriters for such offering, with such agreement to contain such representations and warranties by the Purchaser and Selling Holders and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, taking into account the Purchaser’s prior underwritten offerings, which may include, without limitation, indemnities and contribution to the effect and to the extent provided in Article VI hereof and the provision of independent certified public accountants’ letters to the effect and to the extent provided in Section 4.1(f) hereof, and any other documents or certificates customary in similar offerings. The Holders of Eligible Securities on whose behalf such securities are to be distributed by such underwriters shall be parties to any such underwriting agreement and the representations and warranties by, and the other agreements on the part of, the Purchaser to and for the benefit of such underwriters shall also be made to and for the benefit of such holders of such securities, but only to the extent such representations and warranties and other agreements are customarily made by issuers to selling stockholders in secondary underwritten public offerings.

Underwritten Shelf Takedown. (ai) If, at any time during which a Shelf Registration is in effect (or in connection with its initial effectiveness), the Company shall receive a request from (x) Eligible Stockholders holding in the aggregate more than 10% of the then outstanding Shares (such Persons, which, for the avoidance of doubt, may include Xxxxxx Xxxxxxxx or his estate, the “Shelf Takedown Requesting Stockholders”) or (y) a Xxxxxxxx Demanding Stockholder to facilitate an Underwritten Public Offering and sale of all or a portion of the Registrable Securities registered or registrable thereon (such request, an “Underwritten Shelf Takedown Request,” and any Underwritten Public Offering conducted pursuant thereto, an “Underwritten Shelf Takedown”), then the Company shall use all reasonable efforts to (1) file such amendments and supplements or reports under the Exchange Act, if applicable, so as to include in the Shelf Registration, and (2) facilitate, as expeditiously as possible, the sale of: a. all Registrable Securities for which the Shelf Takedown Requesting Stockholders or the Xxxxxxxx Demanding Stockholder, as applicable, have requested registration and sale under this Section 2.02(b), b. in the case of an Underwritten Shelf Takedown Request at the request of Shelf Takedown Requesting Stockholders or a Xxxxxxxx Demanding Stockholder that is not a Xxxxxxxx Legacy Stockholder, subject to the restrictions set forth in Section 2.01(d) (to the extent applicable), all other Registrable Securities that any other Stockholders have requested the Company to register and sell pursuant to a Piggyback Registration in accordance with Section 2.03(a), all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities to be so registered; provided that no Person may participate in any registration statement pursuant to this Section 2.02(b) unless such Person agrees to sell their Registrable Securities to the underwriters selected as provided in Section 2.05(f) on the same terms and conditions as apply to the Shelf Takedown Requesting Stockholders or such Xxxxxxxx Demanding Stockholder, as the case may be; provided, however, that no such Registering Stockholders shall be required to make any representations or warranties, or provide any indemnity, in connection with any such registration other than representations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, her or its Registrable Securities to be transferred free and clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Registering Stockholder as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto; and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration, and c. in the case of an Underwritten Shelf Takedown Request at the request of Shelf Takedown Requesting Stockholders or a Xxxxxxxx Demanding Stockholder that is not a Xxxxxxxx Legacy Stockholder, any other securities proposed to be registered and sold by the Company or any securities proposed to be registered and sold for the account of any other Persons, with such priorities among the Company and such other Persons as the Company shall determine. (ii) The Company shall be liable for and pay all Registration Expenses in connection with any Underwritten Shelf Takedown, regardless of whether such Registration is effected. The Committee (in the case of an Underwritten Shelf Takedown Request at the request of Shelf Takedown Requesting Stockholders) and the Xxxxxxxx Demanding Stockholder (in the case of an Underwritten Shelf Takedown Request at the request of such Xxxxxxxx Demanding Stockholder) shall have the right, after consultation with the Company, to select the underwriters, initial purchasers or placement agents, if any, the price and other terms upon which and the process by which any sale pursuant to an Underwritten Shelf Takedown is effected; provided, however, that the Committee or the Xxxxxxxx Demanding Stockholder, as the case may be, shall not select any underwriter, initial purchaser or placement agent to which the Company shall reasonably object. (iii) If the managing underwriter advises the Shelf Takedown Requesting Stockholder or the Xxxxxxxx Demanding Stockholder, as the case may be, that, in its view, the number of Registrable Securities requested to be included in an Underwritten Shelf Takedown (including, in the case of an offering pursuant Underwritten Shelf Takedown Request at the request of Shelf Takedown Requesting Stockholders or a Xxxxxxxx Demanding Stockholder that is not a Xxxxxxxx Legacy Stockholder, any Registrable Securities that any Registering Stockholder proposes to a be included and any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of Registrable Securities that can be sold without having an adverse effect on such offering, including the price at which such Registrable Securities can be sold (the “Shelf Registration Statement filed pursuant to Section 2.1 and the Seller so elects (or if the Seller has not delivered written notice to effect an underwritten offering pursuant to this Agreement within ninety (90) after the date hereof, then if Purchaser so electsTakedown Maximum Offering Size”), the Company shall include in such offering shallregistration and/or such Underwritten Public Offering, by written notice delivered in the priority listed below, up to the Purchaser or the Seller Shelf Takedown Maximum Offering Size: (as applicable), be in the form of a Block Trade (subject in any event to Section 4.2). In the event of a Block Trade pursuant to this Section 3.2 (subject in any event to Section 4.2), (1) the electing party shall (i) give at least ten (10) Business Days’ prior notice in writing of such transaction to the other party (which notice may be given prior to the filing of the Shelf Registration Statement, provided that the Purchaser shall have no obligation to effect a Block Trade until the Shelf Registration Statement has been filed); and (ii) identify the potential underwriter(sA) in such notice with contact information for such underwriter(s) for such Block Trade, which underwriter(s) shall be an investment banking firm(s) of national standing and shall be subject to the Purchaser’s reasonable approval and (iii) identify the total number of Eligible Securities expected to be offered and sold in the Block Trade and the applicable Selling Holders, and (2) each party shall use reasonable best efforts to cooperate with the other party in connection with the completion of such Block Trade. For the avoidance of doubt, the Shelf Registration Statement shall not be deemed available for use by the Holders for purposes of this Section 3.2(a) during any Blackout Period. (b) In the case of an underwritten offeringUnderwritten Shelf Takedown Request at the request of a Xxxxxxxx Legacy Stockholder, a number of Registrable Securities equal to the Purchaser and Selling Holders shall enter into and perform their respective obligations under Shelf Takedown Maximum Offering Size; provided, however, that if the Shelf Takedown Maximum Offering Size is less than the number of Registrable Securities sought to be registered by the Xxxxxxxx Legacy Stockholder, then such Xxxxxxxx Legacy Stockholder may withdraw such request as provided in Section 2.02(d); (B) in the case of an underwriting agreement with Underwritten Shelf Takedown Request at the request of Shelf Takedown Requesting Stockholders or a Xxxxxxxx Demanding Stockholder that is not a Xxxxxxxx Legacy Stockholder: (1) first, all Registrable Securities proposed to be sold by the Registering Stockholders (the Registrable Securities, allocated, if necessary for the offering not to exceed the Shelf Takedown Maximum Offering Size, pro rata among the Registering Stockholders on the basis of the relative number of Registrable Securities so requested to be included in such underwriters offering by each Registering Stockholder); and (2) second, any securities proposed to be sold by the Company or any securities proposed to be sold for such offeringthe account of any other Persons, with such agreement to contain such representations and warranties by priorities among the Purchaser and Selling Holders Company and such other terms and provisions Persons as are customarily contained in underwriting agreements with respect to secondary distributions, taking into account the Purchaser’s prior underwritten offerings, which may include, without limitation, indemnities and contribution to the effect and to the extent provided in Article VI hereof and the provision of independent certified public accountants’ letters to the effect and to the extent provided in Section 4.1(f) hereof, and any other documents or certificates customary in similar offerings. The Holders of Eligible Securities on whose behalf such securities are to be distributed by such underwriters Company shall be parties to any such underwriting agreement and the representations and warranties by, and the other agreements on the part of, the Purchaser to and for the benefit of such underwriters shall also be made to and for the benefit of such holders of such securities, but only to the extent such representations and warranties and other agreements are customarily made by issuers to selling stockholders in secondary underwritten public offeringsdetermine.

Underwritten Shelf Takedown. (a) If, in the case of an offering pursuant to at any time during which a Shelf Registration Statement filed pursuant to Section 2.1 and the Seller so elects is in effect (or if in connection with its initial effectiveness), the Seller has not delivered written notice Company shall receive a request from a Sponsor Stockholder (the "REQUESTING STOCKHOLDER") to effect facilitate an underwritten offering Underwritten Public Offering and sale of all or a portion of the Registrable Securities registered or registrable thereon (such request, an "UNDERWRITTEN SHELF TAKEDOWN REQUEST", and any Underwritten Public Offering conducted pursuant to this Agreement within ninety (90) after the date hereofthereto, an "UNDERWRITTEN SHELF TAKEDOWN"), then if Purchaser so electsthe Company shall, subject to the limitations on the number of Underwritten Shelf Takedown Requests contained in Section 3.1(a), such offering shall, by written notice delivered use all reasonable efforts to the Purchaser or the Seller (as applicable), be in the form of a Block Trade (subject in any event to Section 4.2). In the event of a Block Trade pursuant to this Section 3.2 (subject in any event to Section 4.2), (1) file such amendments and supplements or reports under the electing party shall (i) give at least ten (10) Business Days’ prior notice Exchange Act, if applicable, so as to include in writing of such transaction to the other party (which notice may be given prior to the filing of the Shelf Registration Statement, provided that the Purchaser shall have no obligation to effect a Block Trade until the Shelf Registration Statement has been filed); and (ii) identify the potential underwriter(s) in such notice with contact information for such underwriter(s) for such Block Trade, which underwriter(s) shall be an investment banking firm(s) of national standing and shall be subject to the Purchaser’s reasonable approval and (iii) identify the total number of Eligible Securities expected to be offered and sold in the Block Trade and the applicable Selling HoldersRegistration, and (2) each party shall use reasonable best efforts to cooperate with the other party in connection with the completion of such Block Trade. For the avoidance of doubtfacilitate, as expeditiously as possible, the Shelf Registration Statement shall not sale of: (i) all Registrable Securities for which the Requesting Stockholder has requested registration and sale under this Section 3.3, (ii) all other Registrable Securities of the same class or series that any other Stockholder has requested the Company to register and sell pursuant to Article 3 hereof, and (iii) any other securities proposed to be deemed available for use registered and sold by the Holders Company or any securities proposed to be registered and sold for purposes the account of this Section 3.2(a) during any Blackout Periodother Persons, with such priorities among the Company and such other Persons as the Company shall determine, all to the extent necessary to permit the disposition of the Registrable Securities to be so registered. (b) In To the case of an underwritten offeringfullest extent permitted by applicable laws, the Purchaser Company shall be liable for, and Selling Holders pay all Registration Expenses in connection with, any Underwritten Shelf Takedown. The Committee shall enter into have the right, after consultation with the Company, to select the underwriters, initial purchasers or placement agents, if any, the price and perform other terms upon which and the process by which any sale pursuant to an Underwritten Shelf Takedown is effected; provided, however, that the Committee shall not select any underwriter, initial purchaser or placement agent to which the Company shall reasonably object. (c) If the managing underwriter advises the Requesting Stockholder that, in its view, the number of Registrable Securities requested to be included in an Underwritten Shelf Takedown (including any Registrable Securities that any Participating Stockholder proposes to be included and any securities that the Company proposes to be included that are not Registrable Securities) exceeds the Maximum Offering Size, the Company shall include in such registration and/or such Underwritten Public Offering, in the priority listed below, up to the Maximum Offering Size: (i) first, all Registrable Securities proposed to be sold by the Participating Stockholders that have not specified a minimum price for the sale of their respective obligations under an underwriting agreement with such underwriters Registrable Securities, that have specified a minimum price that is less than or equal to the price determined by the Committee for such offeringsale or that have otherwise indicated their desire to sell their Registrable Securities on a PRO RATA basis in proportion to the number of Registrable Securities to be sold by the Committee Members (allocated, if necessary for the offering not to exceed the Maximum Offering Size, PRO RATA among them on the basis of the relative number of Registrable Securities owned by such Participating Stockholders), and (ii) second, any securities proposed to be sold by the Company or any securities proposed to be sold for the account of any other Persons, with such agreement to contain such representations and warranties by the Purchaser and Selling Holders and priorities among such other terms and provisions Persons as are customarily contained in underwriting agreements with respect to secondary distributions, taking into account the Purchaser’s prior underwritten offerings, which may include, without limitation, indemnities and contribution to the effect and to the extent provided in Article VI hereof and the provision of independent certified public accountants’ letters to the effect and to the extent provided in Section 4.1(f) hereof, and any other documents or certificates customary in similar offerings. The Holders of Eligible Securities on whose behalf such securities are to be distributed by such underwriters Company shall be parties to any such underwriting agreement and the representations and warranties by, and the other agreements on the part of, the Purchaser to and for the benefit of such underwriters shall also be made to and for the benefit of such holders of such securities, but only to the extent such representations and warranties and other agreements are customarily made by issuers to selling stockholders in secondary underwritten public offeringsdetermine.