Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i). (ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i). (iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration. 2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2. 2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall: (i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering. (ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement. 2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated. 2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2. 2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company. 2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 4 contracts
Sources: Registration Rights Agreement (Gleacher & Company, Inc.), Investment Agreement (Gleacher & Company, Inc.), Investment Agreement (First Albany Companies Inc)
Demand Registration. All expenses (iother than underwriting discounts and commissions and ADS issuance and stock transfer taxes and fees) If incurred in connection with registrations, filings or qualifications pursuant to Section 2.1 for each Rights Holder (which right may be assigned as provided in Section 2.11), including (without limitation) all registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Company, and the reasonable fees and disbursements of one counsel for the selling Rights Holders selected by them with the approval of the Company, which approval shall not be unreasonably withheld, shall be borne by the Company. In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or more Holders that own an aggregate accounting duties), the expense of 51% or more any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities then outstanding (the “Demanding Holders”) on any securities exchange as required hereunder. In no event shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”)responsible for any underwriting, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all broker or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing similar fees or commissions of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Rights Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts not be required to meet bear any costs and expenses provided in this Section 2.6(a) for the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration proceeding begun pursuant to Section 2 involves an underwritten offering (whether on a “firm”2.1, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, if the Majority Selling Holders, or registration request is subsequently withdrawn at the Initiating Substantial Holder, as request of the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Rights Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by themregistered, shall decide which class unless if at the time of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinionwithdrawal, the amount Rights Holders have learned of securities requested to be included a material adverse change in such offering (whether by Selling Holders the condition, business, or others) exceeds prospects of the amount which can be sold in such offering within a price range acceptable Company not known to the Majority Selling Holders, securities Rights Holders at the time of their request for such registration and have withdrawn their request for registration with reasonable promptness after learning of such material adverse change (in which case such registration shall be included in such offering and not constitute the related registration, use of a demand registration pursuant to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersSection 2.1).
Appears in 4 contracts
Sources: Registration Rights Agreement (Maodong Xu), Registration Rights Agreement (Wang Huimin), Registration Rights Agreement (Zhu Xiaoxia)
Demand Registration. (a) If, following the earlier of (i) If one the consummation of a merger, consolidation, tender offer, sale of assets or more Holders that own an aggregate of 51% or more other disposition of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request Company other than pursuant to the CompanyMerger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall cause there be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be filed included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the Commission following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 days after the date of a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement meeting in respect of a firm commitment underwritten public offering of Primary Shares in which the requirements holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the Securities Act company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (a “Demand Registration”A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and each Demanding Holder Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be entitled to have included therein in the following order:
(subject A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2.72(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all or out-of-pocket expenses incurred by the Company in connection with such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2.1 if within six (62(a) months prior to for a period of 180 days from the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i)recession.
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 3 contracts
Sources: Registration Rights Agreement (Nortek Inc), Registration Rights Agreement (Nortek Inc), Registration Rights Agreement (Ply Gem Industries Inc)
Demand Registration. (i) If one or more In case the Company shall, at any time before April 30, 2005, receive from Holders that own an aggregate of 51holding 40% or more of the outstanding Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request (to be exercised only once) that the CompanyCompany effect a registration and any related qualification or compliance with respect to all or a part of the Registrable Securities (which registration shall at the election of Holder either be for a registration for a primary issuance of the Shares upon the exercise of the Warrant or the resale of the Shares previously issued upon exercise of the Warrant at the election of Holder) owned by such Holder, the Company shall cause there to will promptly notify each other Holder (if any) of such request and will:
(a) as soon as practicable, effect such registration and all such qualifications and compliances as may be filed with so requested and as would permit or facilitate the Commission a registration statement meeting the requirements sale and distribution of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number portion of a Holder's Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other holder of registration rights joining in such request as are specified in a written request given within 20 days after receipt of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of written notice from the Company; PROVIDED, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, howeverHOWEVER, that the Company shall not have postponed be obligated to effect any such registration, qualification or compliance, pursuant to this Section 2.1(ii3: (1) if the filing Company has effected a registration of any other Demand Registration statement otherwise required to be prepared and filed Registrable Securities pursuant to this Section 2.1 during 3 within the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
preceding 12 months; (iii2) Whenever if the Company shall have received furnish to Holder a demand pursuant to Section 2.1(i) to effect certificate signed by the registration President of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing stating that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention good faith judgment of the Secretary Board of Directors of the Company, it would be seriously detrimental to the Company and shall specify the number of Registrable Securities its stockholders for such registration to be registeredeffected at such time, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, in which event the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select defer the underwriter or underwriters and manager or managers to administer such underwritten offering or filing of the placement agent or agents registration statement for such agented offeringa period of not more than 60 days after receipt of the request of Holder under this Section 3; providedPROVIDED, howeverHOWEVER, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to not utilize this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of right more than one class of Registrable Securities, and once in any twelve-month period; or (3) in any jurisdiction in which the Underwriters’ Representative Company would be required to qualify to do business or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.execute
Appears in 3 contracts
Sources: Common Stock Purchase Warrant (Pc Quote Inc), Common Stock Purchase Warrant (Pc Quote Inc), Common Stock Purchase Warrant (Pc Quote Inc)
Demand Registration. (i) If one or more From and after six months after the Closing Date, the Holders that own an aggregate of 51at least 55% or more of the Registrable Securities then outstanding (the “Demanding Holders”excluding any Shelf Shares) shall at any time make a written request may notify Parent in writing that such Holders desire for Parent to the Company, the Company shall cause there up to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of notifying Holders' Registrable Securities to be registeredregistered for sale to the public under the Act. Upon receipt of such written request, Parent will promptly notify in writing all other Holders of Registrable Securities of such request, which Holders shall within twenty days following such notice from Parent notify Parent in writing whether such persons desire to have up to all of the intended methods Registrable Securities held by each of disposition thereof them included in such offering. Parent will, promptly following the expiration of such twenty day period, prepare and that file subject to the request is for a Demand Registration pursuant to provisions of this Section 2.1(i)10.02, and use its best efforts to prosecute to effectiveness, an appropriate filing with the SEC of a registration statement covering such Registrable Securities and the proposed sale or distribution thereof under the Act.
(ii) The Company shall be entitled to postpone for up to one hundred twenty thereto or (120B) days would materially adversely affect the filing business or prospects of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, Parent in its good faith reasonable judgment (with the concurrence view of the managing underwriterdisclosures that may be required thereby of information about the business, if any)assets, that such registration and the Transfer liabilities or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any operations of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationParent theretofore disclosed; provided, however, that the Company shall not have postponed filing of a registration statement, or any supplement or amendment thereto, by Parent may be deferred pursuant to this Section 2.1(ii10.02(c) for no longer than 180 days (but only once in every twelve month period) after the filing delivery of any other Demand Registration statement otherwise such demand notice.
(iii) Notwithstanding anything in this Section 10.02(c) to the contrary: (A) Parent shall not be required to be prepared and filed effect the registration of the Registrable Securities pursuant to this Section 2.1 during 10.02(c) more than one time; and (B) Parent shall not be required to effect any such registration unless at least $1 million of Registrable Securities are to be sold in such registration (with such amount being determined based on the 24 month period ended market price of the Parent Common Stock on the date of the relevant request pursuant to Section 2.1(iinitiating Holder(s) request).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to this Section 2 involves 10.02(c) is in the form of an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, Parent will select and obtain the Majority Selling Holders, investment banker or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters investment bankers and manager or managers that will administer the offering, which investment bankers must offer terms which are reasonably competitive in the marketplace for similar size companies and similar offerings. Parent shall (together with all Holders proposing to administer distribute Registrable Securities through such underwritten offering or underwriting) enter into an underwriting agreement, containing usual and customary terms, with the placement agent or agents managing underwriter selected for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7underwriting. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class If any holder of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to Parent and the managing underwriter. The Registrable Securities proposed to so withdrawn shall also be sold therein by themwithdrawn from registration.
(iv) If any registration statement under this Section 10.02(c) is not declared effective (except as a result of Holders withdrawing Registrable Securities), shall decide which class then the holders of Registrable Securities may request an additional registration under this Section 10.02(c).
(v) No registrations effected under this Section 10.02(c) shall be included therein in such offering and the related registrationrelieve Parent of its obligations to effect any registrations under, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable pursuant to the Majority Selling Holdersterms of, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersSection 10.02(d).
Appears in 3 contracts
Sources: Merger Agreement (Smith Jack T), Merger Agreement (Palmer J N Family Partnership), Merger Agreement (Ladin William E Jr)
Demand Registration. (ia) If one Upon the written request of the Holder or more Holders that own an aggregate of 51% or more at least fifty percent (50%) of the Registrable Securities then outstanding (the “Demanding "Initiating Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii") the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and the registration under the Securities Act of such number of Shelf Registrations Registrable Securities as may are requested to be necessary to provide each and every Substantial Holder registered by the Initiating Holders, all in accordance with the right to request one Shelf Registration. For purposes following provisions of this Agreement, provided that the obligation of the preceding sentence, Company to effect such registration shall not be deemed to have been effected (i) unless a satisfied until the registration statement with respect thereto has become effective, (ii) if after such effective under the Securities Act and only so long as no stop order suspending the effectiveness of the registration statement has become effective, such registration or the related offerqualification or registration of any of the Registrable Securities for sale in any jurisdiction in which the Company shall be required pursuant to Section 6(d) to register or qualify such Registrable Securities shall not have been issued and no proceedings for that purpose shall have been initiated or threatened by the Securities and Exchange Commission (the "Commission") or any similar state agency. Within ten (10) days of the request for registration by the Initiating Holders, sale or distribution the Company shall give written notice of such request to all Holders, who shall be entitled, by written notice to the Company and subject to Section 5(a) hereof, to include shares of Registrable Securities thereunder is interfered with in any registration prepared by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 4(a). The Company shall not be obligated to effect more than three (3) demand registrations pursuant to this Section 4(a).
(b) In addition to the registration rights provided pursuant to Section 4(a) hereof, at any time and from time to time after six months following a firm commitment underwritten initial public offering of the Company's Common Stock (an "IPO"), upon the written request of the Initiating Holders, or at the request of any Holder which agrees to register Registrable Securities having a value of Five Million Dollars ($5,000,000) or more after an IPO, the Company shall be deemed obligated to effect the registration under the Securities Act on Form S-3 (if the Company is then eligible to use such registration form), or any similar short form registration adopted by the Commission for which the Company may then be eligible, of all or any portion of the Registrable Securities held by such Holder, all in accordance with the applicable provisions of this Agreement.
(c) Whenever the Company shall be requested by the Initiating Holders pursuant to Section 4(a) or by a Holder pursuant to Section 4(b) to effect the registration of Registrable Securities under the Securities Act, the Company shall, as provided in Section 5, effect the registration under the Securities Act of the Registrable Securities which the Company has been requested to register pursuant to Section 4(a) or (b), all to the extent requisite to permit the disposition by such Holder of the Registrable Securities so registered.
(d) In connection with requesting registration of Registrable Securities pursuant to Section 4(a) or (b), if the Initiating Holders or a Holder in the case of Section 4(b) advise the Company that they intend to publicly offer or distribute Registrable Securities to be covered by the registration statement pursuant to a firm commitment underwriting with an investment banking firm or firms selected by the Holders, the Company and any other person entitled to include shares of Common Stock in such registration statement shall enter into the same underwriting agreement with such underwriter or underwriters as shall such Holders, containing representations, warranties and agreements not substantially different from those customarily made by an issuer or selling shareholder in underwriting agreements with respect to secondary distributions.
(e) Neither the Company nor any of its security holders (other than the Holders) shall have been satisfied the right to include any securities of the Company in a registration requested pursuant to Section 4(a) or (b) unless (i) if a Demand Registration, upon such securities are of the earlier of (x) the date same class as of which all any of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which in such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, registration and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, offering is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 either (x) not being underwritten and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities requesting registration consent to such inclusion in writing or (y) a firm commitment underwriting and the managing underwriter has informed the Holders that inclusion of such securities will not adversely affect the price range or the probability of success of the offering and such securities are allocated as provided in Section 4(f) and sold on the same terms and conditions as apply to the Registrable Securities being sold. If any security holders of the Company (other than the Holders) register securities of the Company in a registration in accordance with the provisions of Section 4(a) or (b), such security holders shall pay their pro rata share of the Registration Expenses, as defined below, unless the Company has agreed to pay such expenses and, in the opinion of counsel to the Holders, such payment would not affect the ability of the Registrable Securities to be registered or qualified under the blue sky laws of any jurisdiction.
(f) If the Company or any of its security holders request the right to include equity securities in a registration statement filed pursuant to Section 4(a) or (b) and such securities are proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such a firm commitment underwritten offering and the related registration, and managing underwriters advise the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing Company that, in its their opinion, the amount total number of securities requested to be included in such offering (whether by Selling Holders or others) registration exceeds the amount number of securities which can be sold in such offering within a without adversely affecting the price range acceptable or probability of success of such offering, the securities to the Majority Selling Holders, securities shall be included in such offering and the related registrationshall include (i) first, to the extent all of the amount which can be sold within such price rangeRegistrable Securities being registered, and on a (ii) second, pro rata among the other holders of the Company's securities requesting inclusion in such registration on the basis among all Selling Holdersof the number of shares of securities requested to be registered by such holders and (iii) third, such other securities being offered by the Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pantry Inc), Registration Rights Agreement (Fs Equity Partners Iii Lp)
Demand Registration. (ia) If one Subject to the provisions of Section 2.03(c) and Section 3.04 hereof, at any time and from time to time after the Closing Date, in the event that any Holder holds Registrable Securities that are not registered for resale on a delayed or more Holders continuous basis, any Holder that own an aggregate of 51% or more holds at least five percent (5.0%) of the Registrable Securities then outstanding (such holder, the “Demanding HoldersHolder”) shall at any time ), may make a written request to demand for Registration for all or part of such Registrable Securities on a Registration Statement, which written demand shall describe the Company, the Company shall cause there amount and type of securities to be filed with included in such Registration and the Commission a registration statement meeting the requirements intended method(s) of the Securities Act distribution thereof (such written demand a “Demand Registration”). The Company shall, promptly following the Company’s receipt of a Demand Registration, notify, in writing, all other Holders of Registrable Securities of such demand, and each Demanding Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”) shall so notify the Company, in writing, within five (5) days after the receipt by the Holder of the notice from the Company. For the avoidance of doubt, to the extent a Requesting Holder also separately possesses Demand Registration rights pursuant to this Section 2.02, but is not the Holder who exercises such Demand Registration rights, the exercise by such Requesting Holder of its rights pursuant to the foregoing sentence shall not count as the exercise by it of one of its Demand Registration rights. Upon receipt by the Company of any such written notification from a Requesting Holder(s) to the Company, subject to Section 2.03(b) below, such Requesting Holder(s) shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s their Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet file a Shelf as soon thereafter as practicable, but not more than thirty (30) days following the requirements Company’s receipt of Form S-3 the Demand Registration, for so long as any Registration of all Registrable Securities remain outstanding requested by the Demanding Holders and under no circumstances Requesting Holders pursuant to such Demand Registration. The Company shall the Company not be obligated to file effect (i) more than two (2) Registrations pursuant to a Demand Registration State on any form initiated by the Sponsor, (ii) more than two (2) Registrations pursuant to a Demand Registration initiated by the Holders (other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration the Sponsor) or (iii) more than four (4) Registrations pursuant to Section 2 involves an underwritten offering (whether on a “firm”Demand Registration in the aggregate, “best efforts” or “all reasonable efforts” basis or otherwise)in each case, or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offeringin any 12-month period; provided, however, that each Person so selected a Registration shall not be reasonably acceptable to the Companycounted for such purposes unless a Registration Statement that may be available at such time has become effective.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Abacus Life, Inc.), Registration Rights Agreement (East Resources Acquisition Co)
Demand Registration. All expenses (iother than underwriting discounts and commissions and ADS issuance and stock transfer taxes and fees) If incurred in connection with registrations, filings or qualifications pursuant to Section 2.1 for the Rights Holder (which right may be assigned as provided in Section 2.11), including (without limitation) all registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Company, and the reasonable fees and disbursements of one counsel for the selling Rights Holder selected by them with the approval of the Company, which approval shall not be unreasonably withheld, shall be borne by the Company. In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or more Holders that own an aggregate accounting duties), the expense of 51% or more any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities then outstanding (the “Demanding Holders”) on any securities exchange as required hereunder. In no event shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”)responsible for any underwriting, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all broker or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing similar fees or commissions of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Rights Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts not be required to meet bear any costs and expenses provided in this Section 2.6(a) for the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration proceeding begun pursuant to Section 2 involves an underwritten offering (whether on a “firm”2.1, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, if the Majority Selling Holders, or registration request is subsequently withdrawn at the Initiating Substantial Holder, as request of the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders Rights Holder of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by themregistered, shall decide which class unless if at the time of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinionwithdrawal, the amount Rights Holder has learned of securities requested to be included a material adverse change in such offering (whether by Selling Holders the condition, business, or others) exceeds prospects of the amount which can be sold in such offering within a price range acceptable Company not known to the Majority Selling Holders, securities Rights Holder at the time of his request for such registration and have withdrawn his request for registration with reasonable promptness after learning of such material adverse change (in which case such registration shall be included in such offering and not constitute the related registration, use of a demand registration pursuant to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.Section 2.1);
Appears in 2 contracts
Sources: Registration Rights Agreement (JMU LTD), Registration Rights Agreement (Xu Haohan)
Demand Registration. (ia) If one or more Holders that own an aggregate Any Holder holding a majority of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written may request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, Registrable Securities. Upon receipt of such request (specifying that no request may be it is being made pursuant to this Section 2.1 if 2.2(a)), the Corporation shall use its best efforts to file within six ninety (690) months prior to the date days of such request receipt a Demand Registration Statement registration statement on Form S-3 for the resale of the Registrable Securities and shall use its best efforts to cause such registration statement to become effective as expeditiously as reasonably practical. The Corporation shall be obligated to prepare, file and cause to be effective only one registration statement pursuant to this Section 2.1 2.2(a). The Corporation shall have been declared be obligated to prepare, file and cause to be effective by the Commission. Any request made only two registration statements pursuant to this Section 2.1 shall be addressed 2.2(a). Upon the receipt of such request, the Corporation shall:
(i) promptly give to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities each remaining Holder written notice that a registration is to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).effected; and
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, include in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration (and any related qualification under blue sky laws or other compliance) all the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request specified in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request or requests made within 20 days after such written notice was sent by the Corporation, by any Holder. Further, the Corporation shall use all reasonable efforts to the Company (the “Initiating Substantial Holder”), shall cause such registration to be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a non-underwritten shelf registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant and to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities cause such shelf registration to be registeredmaintained effective for at least two (2) years.
(b) Notwithstanding the foregoing, the intended methods of disposition thereof and that the request is for a Shelf Registration Corporation shall not be obligated to take any action pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if in any particular jurisdiction in which the Corporation would be required to execute a general consent to service of process in effecting such Selling Holders have requested registration, qualification or compliance unless the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed Corporation is already subject to be sold therein by them, shall decide which class of Registrable Securities shall be included therein service in such offering jurisdiction and except as may be required by the related registration, and the other class shall be excludedSecurities Act; and or (ii) if the Underwriters’ Representative Corporation shall furnish to the Holders a certificate signed by the Chairman or Agent advises each such Selling Holder President of the Corporation stating that the Corporation has reasonably determined that it should postpone for a specified period of time not to exceed 120 days in writing thatthe case of clause (A) below, or 45 days in its opinionthe case of clause (B) below (each, a “Blackout Period”), any action pursuant to this Section, including, without limitation, the amount preparation and/or filing of securities requested a registration statement or prospectus or any amendments or supplements to any registration statement or prospectus, because any such filing would (A) materially impede, delay or otherwise interfere with an offer or sale of securities, acquisition, corporate reorganization or other significant transaction involving the Corporation, or (B) require disclosure of material information (other than an event described in clause (A) above) which, if disclosed at that time, would be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable materially harmful to the Majority Selling Holders, securities shall be included in interests of the Corporation and its shareholders. Upon delivery of such offering and the related registration, a certificate to the extent Holders by the Corporation, each of the amount which can Holders covenants that he shall (X) keep the fact of the notice strictly confidential, (Y) promptly halt any offer, sale, trading or transfer by him and his affiliates of any Common Stock for the duration of the Blackout Period set forth in the certificate or until the Blackout Period is earlier terminated by the Corporation and (Z) promptly halt any use or distribution of the registration statement and prospectus by him and his affiliates for the duration of the Blackout Period or until such Blackout Period is earlier terminated by the Corporation. The Corporation shall not be sold within such price range, entitled to deliver a certificate and on impose a pro rata basis among all Selling HoldersBlackout Period pursuant to Clause A more than once in any twelve month period.
Appears in 2 contracts
Sources: Registration Rights Agreement (Bioject Medical Technologies Inc), Registration Rights Agreement (Bioject Medical Technologies Inc)
Demand Registration. (ia) If one or more Holders that own Commencing six (6) calendar months following an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request IPO pursuant to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements provisions of the Securities Act (other than a “Demand Registration”registration statement relating either to the sale of securities to employees of the Company pursuant to a share option, share purchase or similar plan or pursuant to a merger, exchange offer or a transaction of the type specified in Rule 145 of the Securities Act) until the Date of Termination (as defined in Clause 2.11 hereof), if the Company shall have received a written request (the “Registration Request”) from Shareholders holding at least 30% of the voting power underlying the outstanding Registrable Securities (the “Initiating Holders”) to file a registration under the Securities Act of all or part of their Registrable Securities, then, the Company shall:
(i) promptly give written notice of such request to each other Shareholder; and
(ii) use its best efforts to effect, as soon as practicable, such registration and each Demanding Holder shall all such qualifications and compliances as may be entitled to have included therein (subject to Section 2.7) so requested and as would permit or facilitate the sale and distribution of all or such number portion of such Demanding Holder’s Registered SharesInitiating Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Demanding Holder shall report in writingCompany; provided, however, that the Company shall file such registration statement with the SEC no request may be made pursuant to this Section 2.1 if within six later than forty-five (645) months prior to days after the date of such request a Demand the Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, Request and shall specify the number of Registrable Securities cause it to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one effective no later than one-hundred twenty (120) days after the date of such filing.
(b) The Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Clause 2.2(a):
(i) after the Company has effected one (1) registration pursuant to this Clause 2.2 and such registrations have been declared or ordered effective;
(ii) if the Initiating Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price (net of any underwriters’ discounts or commissions) of less than $7,500,000 (seven million five hundred thousand United States Dollars);
(iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form F-3 pursuant to a request made in accordance with Clause 2.4;
(iv) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance; or
(v) if the Company shall furnish to such Initiating Holders a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors, it would be seriously detrimental to the Company or its shareholders for such registration to be effected at such time, in which event the Company shall have the right to defer the filing of any Demand Registration the registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if for a period of not more than one-hundred twenty (120) days from the Board determines, in its good faith reasonable judgment (with the concurrence date of receipt of the managing underwriter, if any), that such registration and request of the Transfer Initiating Holder or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationHolders; provided, however, that the Company shall not have postponed utilize this right more than once in any twelve (12) month period; provided further, that the Company shall not register any Shares for the account of itself or any other shareholder during such 120 day period; and provided further, that, in such event, the Initiating Holder or Holders shall be entitled to withdraw such request and, if such request is withdrawn, such registration shall not count as a registration pursuant to Clause 2.2(a) and the Company shall pay any Registration Expenses in connection with such withdrawn registration.
(c) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then they shall so advise the Company as a part of their request made pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared Clause 2.2 and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant include such information in the written notice referred to Section 2.1(i) to effect in Clause 2.2 (a)(i). In such event the registration rights of any Holder to include its Registrable Shares, Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all inclusion of such Holder’s Registrable Shares, or any portion thereof designated 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 of Registrable Securities proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in the customary form with the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders and reasonably acceptable to the Board of Directors of the Company. Notwithstanding any other provision of this Clause 2.2, if the underwriter(s) advise(s) the Company in writing that market factors require a limitation of the number of securities to be underwritten, then the Company shall so advise all holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be reduced as required by the underwriter(s) and allocated among the holders of Registrable Securities on a pro rata basis based on the total number of Registrable Securities held by each Holder requesting registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities then outstanding to be included in such underwriting and registration shall not be reduced unless all other securities of the Company (whether newly issued or held by third parties) are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded and withdrawn from such underwriting shall be withdrawn from the registration.
2.2. On or after the date of this Agreement each Substantial (d) If any Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention disapproves of the Secretary terms of the underwriting, such person may elect to withdraw from such underwriting by written notice to the Company, the managing underwriter and the Initiating Holders. The Registrable Securities and/or other securities held by such Holder affected shall specify be withdrawn from the registration.
(e) If the distribution of Registrable Securities is being effected by means of an underwriting and if the managing underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account if the managing underwriter so agrees. The inclusion of such shares shall be on the same terms as the registration of shares held by the holders of Registrable Securities participating in such registration. If the underwriters subsequently exclude some of the securities to be registered, the intended methods securities to be sold for the account of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, shall be excluded in each instance giving due regard their entirety prior to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as exclusion of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company to be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or registered by the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Yandex N.V.)
Demand Registration. (a) Registration Other Than on Form F-3 or Form S-3. Subject to the terms of this Agreement, at any time or from time to time after the earlier of (i) If one the fourth (4th) anniversary of the Initial Closing Date or more Holders (ii) the date that own an aggregate is six (6) months after the closing of 51the Qualified IPO, Holder(s) holding 30% or more of the issued and outstanding Registrable Securities then outstanding (on an as-converted basis) may request in writing that the “Demanding Holders”) shall at any time make Company effect the Registration of the Registrable Securities. Upon receipt of such a written request to the Companyrequest, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7x) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such the proposed registration Registration to all Holders. Any other Holders and (y) as soon as practicable, use its commercially reasonable efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Holder may, Registration within twenty fifteen (2015) days after receipt of the such noticewritten request, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, to be included Registered and/or qualified for sale and distribution in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4United States. The Company shall be obligated to effect no more than three Demand (3) Registrations pursuant to this Clause 12.1(a) that have been declared and such number ordered effective; provided that if the sale of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes all of the preceding sentenceRegistrable Securities sought to be included pursuant to this Clause 12.1(a) is not consummated for any reason other than due to the action or inaction of the Holders including Registrable Securities in such Registration, registration such Registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement constitute one of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration Registration rights granted pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiatedClause 12.1(a).
2.5. A registration pursuant to this Section 2 shall be (b) Registration on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method F-3 or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the The Company shall use its commercially reasonable efforts to meet qualify for registration on Form F-3 or Form S-3. Subject to the requirements terms of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall this Agreement, if the Company be obligated qualifies for registration on Form F-3 or Form S-3, any Holder may request the Company to file a Registration State Statement on Form F-3 or Form S-3, including without limitation any form other than Form S-3 to fulfill ist obligations Registration Statement filed under Section 2.2.
2.6. If any the Securities Act providing for the registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securitiesof, and the Underwriters’ Representative sale on a continuous or Agent advises each such Selling Holder in writing thata delayed basis by the Holders of, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority all of the Registrable Securities pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the Commission. Upon receipt of such a request, the Company shall (i) promptly give written notice of the proposed Registration to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the all other class shall be excluded; Holders and (ii) as soon as practicable, use its commercially reasonable efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within twenty (20) days after the Company’s delivery of written notice, to be Registered and qualified for sale and distribution in the relevant jurisdiction within sixty (60) days of the receipt of such request. The Company shall be obligated to effect no more than two (2) Registrations that have been declared and ordered effective within any twelve (12)-month period pursuant to this Clause 12.1(b); provided that if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, sale of all of the amount of securities requested Registrable Securities sought to be included pursuant to this Clause 12.1(b) is not consummated for any reason other than due to the action or inaction of the Holders including Registrable Securities in such offering (whether by Selling Holders or others) exceeds the amount which can Registration, such Registration shall not be sold in such offering within a price range acceptable deemed to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent constitute one of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersRegistration rights granted pursuant to this Clause 12.1(b).
Appears in 2 contracts
Sources: Shareholder Agreement (ZEEKR Intelligent Technology Holding LTD), Shareholder Agreement (ZEEKR Intelligent Technology Holding LTD)
Demand Registration. (ia) If one or more At any time after the date which is six months after the closing of the initial underwritten public offering of the Common Stock registered under the Securities Act, Holders that own an aggregate of 51holding at least 50% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written propose to dispose of all or part of such Registrable Securities, then such Holders may request to the Company, the Company shall cause there in writing to be filed with the Commission a effect such registration statement meeting the requirements of under the Securities Act (a “Demand Registration”)Act, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such stating the number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number shares of Registrable Securities to be registered, disposed of and the intended methods method(s) of disposition thereof and that the of such shares. Holders of Registrable Securities which request is for a Demand Registration registration pursuant to this Section 2.1(i2(a) are referred to herein as the "Initiating Holders". In connection with any registration under this Section 2 involving an underwriting (an "Underwritten Offering").
(ii, the Initiating Holders will have the right to select an investment banker(s) The Company and manager(s) for such Underwritten Offering, which investment banker(s) and manager(s) shall be entitled reasonably satisfactory to postpone for up to one hundred twenty (120) days the filing Company. Upon receipt of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if a request from the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable SharesInitiating Holders, the Company shall promptly give prompt written notice thereof to all other Holders and shall use commercially reasonable efforts to promptly effect the registration under the Securities Act of all Registrable Securities specified in the requests of the Initiating Holders and the written requests (stating the number of shares of Registrable Securities to be disposed of and the intended method of disposition of such proposed registration to shares) of all Holders. Any such Holder may, other Holders given within twenty (20) 20 days after receipt of such noticenotice from the Company, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company extent requisite to permit the disposition (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention intended methods of disposition) of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(iib) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts may postpone taking action with respect to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration requested pursuant to Section 2 involves an underwritten offering 2(a) (whether on a “firm”"Demand Registration") for a reasonable period of time after receipt of the request (not exceeding 60 days) if, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, in the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to good faith opinion of the Company's Board of Directors, effecting the registration would adversely affect a material financing, acquisition, disposition of assets or stock, merger or other comparable transaction or would require the Company to make public disclosure of information the public disclosure of which could have a material adverse effect upon the Company; provided that Company shall not delay such action pursuant to -------- this sentence more than twice in any twelve (12) month period.
2.7. Whenever (c) If the Company shall effect a registration pursuant to managing underwriter(s) of an Underwritten Offering under this Section 2 advises the Company that the number of securities to be sold in connection with an underwritten offering by one such Underwritten Offering, is greater than the number which can be offered without adversely impacting such Underwritten Offering, including, without limitation, the price range or more Selling Holders probability of Registrable Securitiessuccess of such Underwritten Offering, then the Company will include in such Underwritten Offering the number of securities which the managing underwriter(s) advises the Company may be included in such Underwritten Offering without such adverse impact in the following priority: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securitiesfirst, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering registration by the Holders (whether by Selling Holders or othersincluding the Initiating Holders) exceeds and (ii) second, other securities of the amount which can be sold in such offering within a price range acceptable Company proposed to the Majority Selling Holders, securities shall be included in such offering registration, allocated among the holders thereof in accordance with the priorities then existing among the Company and the related registration, to the extent holders of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersother securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (C Quential Inc), Registration Rights Agreement (C Quential Inc)
Demand Registration. If at any time from and after the date of this Agreement, the Company shall be requested in writing by Holder to effect the registration under the Act of shares of the Company's common stock then owned by Holder (which request shall specify the aggregate number of shares intended to be offered and sold by Holder, shall describe the nature or method of the proposed offer and sale thereof and shall contain an undertaking by Holder to cooperate fully with the Company in order to permit the Company to comply with all applicable requirements of the Act and the rules and regulations thereunder and to obtain acceleration of the effective date of the registration statement contemplated thereby), the Company shall effect the registration of such securities on an appropriate form under the Act, provided that (i) If one or more Holders that own an aggregate of 51% or more of Holder may exercise the Registrable Securities then outstanding (right to request registration pursuant to this Section 2 only with respect to those shares that, at the “Demanding Holders”) shall at any time make a written such request for registration is delivered to the Company, may not be sold to the Company public pursuant to Rule 144 under the Act or any similar or successor rule; (ii) Holder's rights under this Section 2 shall cause there be exercisable only if the shares as to be filed with which Holder requests registration have an aggregate value of at least $250,000 based on the Commission a registration statement meeting the requirements average of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, closing bid price for the Company's common stock as listed on any exchange on which the Demanding Holder shall report in writing; provided, however, that no request Company's common stock then may be made pursuant to this Section 2.1 if within six traded for the thirty (630) months prior to trading-day period immediately preceding the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by for registration; (iii) the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration registration statement otherwise required to be prepared and filed by it pursuant to this Section 2.12, if at the Board determinestime it receives a request for such registration, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), Company's underwriter determines that such registration and the Transfer or Registrable Securities contemplated thereby offering would materially interfere with, with any existing or require premature disclosure of, any then presently contemplated financing, acquisition acquisition, corporate reorganization or reorganization other material transaction involving the Company or any of its wholly owned subsidiaries Company, and the Company promptly gives the Demanding Holders Holder written notice of such determination; , provided, however, that the Company such postponement shall not have postponed pursuant extend beyond the time that such material interference continues to this Section 2.1(iiexist; and (iv) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company Holder shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant with respect to this Section 2 shall be deemed to have been satisfied any shares within ninety (i90) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon calendar days after the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A any registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be statement filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (KLS Enviro Resources Inc), Consulting Agreement (KLS Enviro Resources Inc)
Demand Registration. (a) Subject to the provisions of Section 2.7, at any time and from time to time on or after the the closing of the Transactions, each of (i) If one or more the Gores Holders that own an aggregate of 51% or more at least a majority in interest of the then-outstanding number of Registrable Securities then outstanding held by the Gores Holders (the “Gores Demanding Holders”), (ii) the Parent Demanding Holders, and (iii) Parent (together with the Gores Demanding Holders, the Parent Demanding Holders, the “Demanding Holders”) shall at any time ), may make a written request to demand for Registration of all or part of their Registrable Securities on (1) Form F-1 or (2) if available, Form F-3, which in the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements case of the Securities Act either clause (a “Demand Registration”1) or (2), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand shelf Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act Act, which written demand shall describe the amount and type of securities to be included in such Registration and the intended method(s) of distribution thereof (such written demand a “Shelf Demand Registration”). Any request made The Company shall, promptly following the Company’s receipt of a Demand Registration (and, in any event, within twenty days of its receipt of such Demand Registration, notify, in writing all other Holders of Registrable Securities of such demand, and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in a Registration pursuant to this Section 2.2 a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”) shall be addressed to the attention of the Secretary of so notify the Company, and shall specify in writing, within ten (10) days after the number receipt by the Holder of Registrable Securities the notice from the Company. For the avoidance of doubt, to be registered, the intended methods of disposition thereof and that the request is for extent a Shelf Requesting Holder also separately possesses Demand Registration rights pursuant to this Section 2.2.
2.3, but is not the Holder who exercises such Demand Registration rights, the exercise by such Requesting Holder of its rights pursuant to the foregoing sentence shall not count as the exercise by it of one of its Demand Registration rights. Following Upon receipt by the Company of any such written notification from a request for Requesting Holder(s) to the Company, subject to Section 2.2(d), such Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to a Demand Registration or a Shelf Registrationand the Company shall effect, as soon thereafter as practicable, the Company shall:Registration of all Registrable Securities requested by the Demanding Holders and Requesting Holders pursuant to such Demand Registration.
(b) Notwithstanding the provisions of Section 2.2(a) or any other part of this Agreement, a Registration pursuant to a Demand Registration shall not count as a Registration unless and until (i) File the registration statement Registration Statement filed with the Commission as promptly as practicable, and shall use the Company’s best efforts with respect to have the registration a Registration pursuant to a Demand Registration has been declared effective under by the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence Commission and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as Company has complied with all of which all the Registrable Securities its obligations under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement Agreement with respect thereto thereto; provided, further, that if, after such Registration Statement has become been declared effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution an offering of Registrable Securities thereunder in a Registration pursuant to a Demand Registration is subsequently interfered with by any stop orderorder or injunction of the Commission, federal or state court or any other governmental agency, the Registration Statement with respect to such Registration shall be deemed not to have been declared effective, unless and until, (1) such stop order or injunction is removed, rescinded or otherwise terminated, and (2) a majority-in-interest of the Demanding Holders initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly notify the Company in writing, but in no event later than ten (10) days after the removal, rescission or other termination of such stop order or requirement injunction, of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminatedelection; provided, or (iii) if the conditions to closing specified in the underwriting agreementfurther, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If that the Company shall have complied not be obligated or required to file another Registration Statement until the Registration Statement that has been previously filed with its obligations under this Agreement, respect to a right to demand a registration Registration pursuant to this a Demand Registration by the same Demand Holder becomes effective or is subsequently terminated.
(c) Subject to the provisions of Section 2 shall be deemed to have been satisfied (i2.2(d) and Section 2.7, if a majority-in-interest of the Demanding Holders so advise the Company as part of their Demand Registration, upon Registration that the earlier of (x) the date as of which all offering of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period be in the form of two hundred seventy an Underwritten Offering, then the right of such Demanding Holder or Requesting Holder (270if any) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the include its Registrable Securities in accordance such Registration shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent provided herein. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this Section 2.2(c), subject to Section 3.3 and Article IV, shall enter into an underwriting agreement in customary form with the intended method or methods of disposition specified in Company and the request pursuant to Section 2.1(iUnderwriter(s) or Section 2.2, respectively. The Company agrees to file all reports required to be filed selected for such Underwritten Offering by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration majority-in-interest of the offer and sale by Demanding Holders initiating the InvestorsDemand Registration, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(iwhich Underwriter(s) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable satisfactory to the Company.
2.7. Whenever the Company shall effect (d) If a registration pursuant Demand Registration is to this Section 2 in connection with be an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, Underwritten Offering and the managing Underwriter or Underwriters’ Representative or Agent , in good faith, advises each such Selling Holder the Company, the Demanding Holders and the Requesting Holders (if any) in writing that, in its opinion, the inclusion of more than one class dollar amount or number of Registrable Securities would adversely affect such offering, that the Demanding Holders holding at least and the Requesting Holders (if any) desire to sell, taken together with all other Registrable Securities or other equity securities that the Company desires to sell for its own account and the Registrable Securities, if any, as to which a majority Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other stockholders of the Registrable Securities proposed Company who desire to be sold therein by themsell, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the maximum dollar amount which or maximum number of equity securities that can be sold in such Underwritten Offering without adversely affecting the proposed offering within a price range acceptable to price, the Majority Selling Holderstiming, securities the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall be included include in such offering Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding Holders and the related registrationRequesting Holders (if any) (pro rata based on the total amount of Registrable Securities held by each such Demanding Holder and Requesting Holder (if any) (such proportion is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the amount foregoing clause (i), the Registrable Securities or other equity securities that the Company desires to sell for its own account, which can be sold within without exceeding the Maximum Number of Securities; and (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Registrable Securities or other equity securities of other persons or entities that the Company is obligated to register in a Registration pursuant to separate written contractual arrangements with such price range, persons and on a pro rata basis among all Selling Holdersthat can be sold without exceeding the Maximum Number of Securities.
Appears in 2 contracts
Sources: Business Combination Agreement (Gores Guggenheim, Inc.), Registration Rights Agreement (Gores Guggenheim, Inc.)
Demand Registration. (ia) If one If, at any time after the earlier of (1) the Permitted Third Party Transfer Date or more Holders (2) the Regulatory Transfer Date, the Company shall receive from a Demand Party a written request that own an aggregate the Company effect a registration of 51% and any related qualification or more compliance with respect to all or a part of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Companyowned by such Demand Party, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements will:
(i) promptly give written notice of the Securities Act (a “Demand Registration”)proposed registration, and each Demanding Holder shall be entitled any related qualification or compliance, to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writingother Holders; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).and
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1as soon as practicable, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the Transfer sale and distribution of all or such portion of such Holder's or Holders' Registrable Securities contemplated thereby would materially interfere withas are specified in such request, together with all or require premature disclosure of, such portion of the Registrable Securities of any financing, acquisition other Holder or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice joining in such request as are specified in a written request given within 15 days after receipt of such determinationwritten notice from the Company; provided, however, that the Company shall not have postponed be obligated to effect any such registration, qualification or compliance pursuant to this Section 2.1(ii4.2 if: (A) the filing Holders, together with the holders of any other Demand Registration statement otherwise required securities of the Company entitled to be prepared inclusion in such registration, propose to sell Registrable Securities and filed such other securities (if any) at an aggregate price to the public (net of any underwriters' discounts or commissions) of less than $5,000,000;(B) the Company has already effected one registration in any 12-month period on Form S-1 or three registrations in any 12-month period on Form S-3 for the Holders pursuant to this Section 2.1 during 4.2 that have been declared or ordered effective and that have remained effective for the 24 period specified in Section 4.3(a); (C) the Company shall furnish to such Holders a certificate signed by the President or Chief Executive Officer of the Company stating that in the reasonable good faith judgment of the Board, such registration, qualification or compliance would materially and adversely affect any pending or proposed acquisition, merger, financing or other material corporate event or transaction or negotiations with respect thereto, and as a result would be seriously detrimental to the Company and its shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, in which event the Company shall have the right to defer such filing for a period of not more than 90 days after receipt of the request of the Holder or Holders under this Section 4.2; provided, however, that the Company may not utilize this right more than once in any 12-month period ended on the date or (D) all Holders Beneficially Own less than one percent of the relevant request pursuant to Section 2.1(ioutstanding shares of Common Stock (assuming conversion of all securities of the Company that are convertible, exchangeable or exercisable into Common Stock).
(iiib) Whenever the Company shall have received Promptly upon receipt of any request for a demand registration pursuant to Section 2.1(iparagraph (a) to effect the registration of any Registrable Sharesabove (but in no event more than five business days thereafter), the Company shall promptly give send written notice of any such proposed registration request to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission other Holders in accordance with Section 6.8, and the Company shall include in such registration all Registrable Securities Act of any Holder with respect to which the Company has received written request for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”)inclusion therein within 15 days after such notice has been given. Any request All requests made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and 4.2(b) shall specify the number kind and aggregate amount of Registrable Securities to be registeredregistered and the intended method of distribution of such securities.
(c) Subject to the foregoing, the intended methods Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of disposition thereof and that the request is for a Shelf Registration or requests of the Holders (but in no event more than 60 days thereafter). Registrations effected pursuant to Section 4.1 shall not be counted as registrations effected pursuant to this Section 2.2.
2.34.2. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the A registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration requested pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall 4.2 will not be deemed to have been effected unless it has become effective and (i) unless a all the Registrable Securities registered thereunder have been sold or (ii) the registration statement with respect thereto remains effective for 120 days after it has been declared effective by the SEC; provided that if, within 120 days after it has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution offering of Registrable Securities thereunder pursuant to such registration is (A) interfered with by any stop order, injunction or other order or requirement of the Commission SEC or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminatedGovernmental Entity, or (iiiB) if the conditions to closing specified in the underwriting agreement or similar agreement, if any, entered into in connection with the sale of Registrable Securities pursuant to such registration are not satisfied or waived, other than and the closing does not occur by reason of a failure on wrongful act, misrepresentation or breach by the part of the Selling Holders. Company, such registration will be deemed not to have been effected.
(d) If the Company shall have complied with its obligations under this Agreement, a right to demand a requested registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 4.2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, and the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the managing underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever advises the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount number of securities requested to be included in such offering registration (whether by Selling Holders or othersincluding securities of the Company which are not Registrable Securities) exceeds the amount number which can be sold in such offering within a without being reasonably likely to have an adverse effect on the price range acceptable or timing of such offering of the securities to be registered, then the Majority Selling Holders, securities shall Company will include in such registration only the Registrable Securities requested by the Holders to be included in such offering and registration. In the related registrationevent that the number of Registrable Securities requested by the Holders to be included in such registration exceeds the number which, to in the extent opinion of the amount which such managing underwriter, can be sold within without having the adverse effect referred to above, the number of such price range, and on a Registrable Securities to be included in such registration shall be allocated pro rata basis among all Selling Holdersthe requesting Holders on the basis of the relative number of Registrable Securities then held by each such Holder (provided that any amount thereby allocated to any such Holder that exceeds such Holder's request will be reallocated among the remaining requesting Holders in like manner). In the event that the number of Registrable Securities requested to be included in such registration is less than the number which, in the opinion of the managing underwriter, can be sold without having the adverse effect referred to above, the Company may include in such registration the securities the Company or other securityholders of the Company propose to sell up to the number of securities that, in the opinion of the underwriter, can be sold without having the adverse effect referred to above.
Appears in 2 contracts
Sources: Investor Rights Agreement (Canadian Imperial Bank of Commerce /Can/), Investor Rights Agreement (Global Payments Inc)
Demand Registration. 2.1 Registration Other Than on Form F-3 or Form S-3. Subject to the terms of this Agreement, at any time or from time to time after the earlier of (i) If one the third (3rd) anniversary of the Closing or more (ii) the date that is six (6) months after the consummation of the IPO, any Holder of fifty percent (50%) of the Registrable Securities or Holders that own an aggregate of 51% or more fifty percent (50%) of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written may request to the Company, in writing that the Company shall cause there to be filed with the Commission effect a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (together with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, which the other Holders elect to include in such Registration) on any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice internationally recognized exchange that is reasonably acceptable to such Initiating Holders. Upon receipt of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Sharesrequest, the Company shall promptly (x) give written notice of such the proposed registration Registration to all Holders. Any such Holder may, within twenty other Holders (20) days after receipt of such notice, request in writing that and all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that other Holders shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard right to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(iijoin such Registration) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding use commercially reasonable efforts to cause the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, Registrable Securities specified in the case request, together with any Registrable Securities of a Demand Registrationany Holder who requests in writing to join such Registration within fifteen (15) Business Days after the Company’s delivery of written notice, postponed to be Registered and/or qualified for sale and distribution in such jurisdiction as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4Initiating Holders may request. The Company shall be obligated to effect consummate no more than three Demand (3) Registrations pursuant to this Section 2.1 that have been declared and such number of Shelf Registrations as may ordered effective; provided that if the Registrable Securities sought to be necessary included in the Registration pursuant to provide each and every Substantial Holder with this Section 2.1 are not fully included in the right Registration for any reason other than solely due to request one Shelf Registration. For purposes the action or inaction of the preceding sentenceHolders including Registrable Securities in such Registration, registration such Registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement constitute one of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration Registration rights granted pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated2.1.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Shareholders Agreement (OneSmart International Education Group LTD), Shareholders Agreement (OneSmart International Education Group LTD)
Demand Registration. (a) Upon notice to the Company from one or more Shareholders holding Restricted Shares having an aggregate fair market value of at least U.S.$15 million (based upon the then-prevailing market price for the Shares on the Nasdaq National Market or other principal securities market on which the Shares are listed or, in the absence of any such listing, as determined in good faith by the Board), such Shareholders (the "Requesting Shareholders") shall have the right to request (a "Demand Request") in writing a registration of such Restricted Shares. Each Demand Request shall (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities Restricted Shares which each Requesting Shareholder intends to be registeredsell or dispose of, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled state the intended method or methods by which the Requesting Shareholder intends to postpone for up to one hundred twenty (120) days the filing sell or dispose of any such Restricted Shares. Upon receipt of a Demand Registration statement otherwise required to be prepared and filed Request pursuant to this Section 2.1, if the Board determinesCompany shall (as requested) (i) cause to be filed, within the later of (x) 90 days of the date of delivery to the Company of the Demand Request and (y) 180 days after the effectiveness of the most recently filed registration statement by the Company, a registration statement covering such Restricted Shares which the Company has been so requested to register, providing for the registration under the Securities Act of such Restricted Shares to the extent necessary to permit the disposition of such Restricted Shares so to be registered in its good faith reasonable judgment (accordance with the concurrence intended method of the managing underwriter, if any), that distribution specified in such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationDemand Request; provided, however, that the Company may delay making such filing or taking such action by not more than ninety (90) days in any 12-month period if the Company, prior to the time it would otherwise have been required to file such registration statement or take such action (but not including the preparation of the registration statement), determines in good faith that the filing of such registration statement or the taking of such action would require the disclosure of material, non-public information that, in the reasonable judgment of the Board, would be detrimental to the Company if so disclosed (and a delay would be likely to reduce the detrimental effect of such disclosure or obviate the need for such disclosure to be made, or would otherwise adversely affect a financing, acquisition, disposition, merger or other material transaction), (ii) shall not use its best efforts to have postponed such registration statement declared effective by the Commission as soon as practicable thereafter, and (iii) refrain from filing any other registration statements with respect to any other securities of the Company until such date which is 180 days following effectiveness of the registration statement filed in response to the Demand Request; provided, however, that notwithstanding this clause (iii), each of Carlyle/Carlton and Hicks Muse shall be permitted to make at least one demand in any 12-mon▇▇ ▇▇riod, subject to the limitations set forth in Section 2.1(c) hereof. The underwriter shall be selected by the Requesting Shareholders and shall be reasonably acceptable to the Company for any registration pursuant to this Section 2.1(ii2.1.
(b) In the filing event that the Company is required to file a registration statement covering any Restricted Shares of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request Requesting Shareholders pursuant to Section 2.1(i).
(iii2.1(a) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Sharesabove, the Company shall promptly give written notice of be permitted to include newly-issued securities ("Piggyback Securities") in such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness managing underwriter of a such proposed registration pursuant determines and advises in writing that the inclusion of all Piggyback Securities proposed to this Section 2 is suspended or, be included in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder underwritten public offering would interfere with the right to request one Shelf Registration. For purposes successful marketing of the preceding sentenceRequesting Shareholders' Restricted Shares, registration then the Company shall not be deemed permitted to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable include any Piggyback Securities thereunder is interfered with by any stop order, injunction or other order or requirement in excess of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreementamount, if any, entered into of Piggyback Securities which the managing underwriter of such underwritten offering shall reasonably and in connection with good faith agree in writing to include in such registration offering in excess of any amount to be registered for the Requesting Shareholders. The Piggyback Securities that are not satisfied or waived, other than excluded from the underwritten public offering pursuant to the preceding sentence shall be withheld from the market by reason of a failure on the part of the Selling Holders. If the Company for a period, not to exceed 180 days from the closing of such underwritten public offering, that the managing underwriter determines is necessary in order to effect such underwritten public offering.
(c) The Company shall not be required to comply with more than eight Demand Requests, such that the Shareholders will have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied the following Demand Requests: (i) if Carlyle/Carlton shall have three such Demand Requests; (ii) Hicks Muse shall have three such Demand Requests; (iii) the El Sitio Fo▇▇▇▇▇s shall have, in the aggregate, two such Demand Requests. A request for registration shall not count as a Demand Registration, upon the earlier of Request until (xa) the date as of which all registration statement relating thereto has been declared effective by the Commission and (b) the Shareholder making the demand for registration is able to sell at least 75% of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (1945 Carlton Investments LLC), Registration Rights Agreement (Hicks Thomas O)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding Subject to paragraph (the “Demanding Holders”b) shall at hereof, any time make a written request to after the Company’s IPO, certain Stockholders, as set forth below, may request in writing (specifying that such request is being made pursuant to this Section 3.2) that the Company shall cause there to be filed with the Commission file a registration statement meeting under the requirements of 1933 Act, or a similar document pursuant to any other statute then in effect corresponding to the Securities 1933 Act (a “Demand Registration”). Each of (A) the CCMP Stockholders, and each Demanding Holder (B) the ▇▇▇▇▇▇ Stockholders shall have the right to request an unlimited number of Demand Registrations and any Management Stockholder holding between five percent (5%) and fifteen percent (15%) of the Company’s then-issued and outstanding Shares will be entitled to have included therein request one (subject 1) Demand Registration (collectively, the “Demanding Holders”).
(b) Notwithstanding anything contained in this Section 3.2 to Section 2.7the contrary, the Company shall not be obligated to effect any registration under the 1933 Act except in accordance with the following provisions:
(i) all or such number of such Demanding Holder’s Registered Shares, as the No Demanding Holder may request more than two (2) Demand Registrations in any one hundred eighty (180)-day period and in no event shall report the Company be required to effect more than four (4) Demand Registrations in writingany twelve (12) month period; provided, however, that no request may be made pursuant if the Demanding Holders are unable to this Section 2.1 if within six (6) months prior to the date of such request sell at least a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention majority of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration included in any registration pursuant to Section 3.2(a) as a result of an underwriter’s cutback pursuant to Section 3.2(b)(iii), then such registration shall not count as a requested registration for purposes of this Section 2.1(i3.2(b)(i).
(ii) The Company shall be entitled to postpone may delay the filing or effectiveness of any registration statement for a period of up to one hundred twenty ninety (12090) days after the filing date of any Demand Registration statement otherwise required a request for registration pursuant to Section 3.2 if at the time of such request (A) the Company is engaged, or has fixed plans to engage within ninety (90) days of the time of such request, in a firm commitment underwritten Public Offering of Primary Shares in which the holders of Registrable Shares have been or will be permitted to include all the Registrable Shares so requested to be prepared and filed registered pursuant to this Section 2.1, if 3.3; (B) the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), reasonably determines that such registration and the Transfer or Registrable Securities contemplated thereby offering would materially interfere with, or require premature disclosure of, with any financing, acquisition or reorganization Material Transaction involving the Company Company; or any of its wholly owned subsidiaries and (C) within the last forty-five (45) days the Company promptly gives has completed a firm commitment underwritten Public Offering of Primary Shares in which the Demanding Holders notice holders of such determinationRegistrable Shares have been permitted to include Registrable Shares; provided, however, that the Company shall not have postponed only be entitled to invoke its rights under this Section 3.2(b)(ii) one (1) time with respect to a request made pursuant to Section 3.2(a) by each Demanding Holder during any twelve (12) month period without CCMP Consent;
(iii) With respect to any proposed registration pursuant to this Section 2.1(ii3.2, (X) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written prompt notice of such proposed registration to all Holders. Any each Stockholder and shall offer to and shall include in such Holder mayproposed registration any Registrable Securities requested to be included in such proposed registration by each Stockholder, provided that such Stockholder responds in writing to the Company’s notice within twenty fifteen (2015) days after receipt delivery by the Company of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company notice (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and which response shall specify the number of Registrable Securities such Stockholder is requesting to include in such registration) and (Y) the Company may include in such registration any Primary Shares; provided, however, that if the managing underwriter advises the Company that the inclusion of all Registrable Securities and/or Primary Shares proposed to be registeredincluded in such registration would interfere with the successful marketing (including pricing) of the Registrable Securities proposed to be included in such registration, then the intended methods number of disposition thereof and that Registrable Securities and/or Primary Shares proposed to be included in such registration shall be included in the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shallfollowing order:
(iA) File the registration statement with the Commission as promptly as practicablefirst, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under owned by the Demand Registration statement Stockholders (including those requesting registration pursuant to Section 3.2 and Section 3.3), pro rata based upon the number of Registrable Securities owned by the Stockholders; provided, that if the managing underwriter advises the Company that the inclusion of all Registrable Securities proposed to be included in such registration would materially adversely affect the offering and sale (including pricing) of all such Securities, then the number of Registrable Securities to be included in such registration shall have been disposed be allocated among the Stockholders on a pro rata basis in accordance with the number of in Registrable Securities owned by the manner described in Stockholder who has requested inclusion; and
(B) second, the Registration StatementPrimary Shares. provided, and that at the election of the Company, (yi) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as 3.2 may be necessary converted into a registration pursuant to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentenceSection 3.3 (in which event, such registration shall not be deemed to have been effected be a registration requested under Section 3.2(a) or count against the limitations on such registration requests set forth in this Section 3.2(b)) or (ii) with the consent of the Demanding Holders, the Primary Shares may be set at the same priority level as the Registrable Securities thereby being cutback on a pro rata basis based upon the number of Registrable Securities and Primary Shares requested to be included in such registration statement by the Stockholders and the Company.
(iv) The Company shall not be obligated to effect any registration under the 1933 Act requested by any Stockholder if the anticipated gross offering price of all Registrable Securities to be included therein would be less than $10,000,000.
(c) If the Holders of Registrable Securities requesting to be included in a registration pursuant to Section 3.2(a) so elect, the offering of such Registrable Securities pursuant to such registration shall be in the form of an underwritten Public Offering.
(d) At any time before the registration statement covering such Registrable Securities becomes effective, the Demanding Holders may request the Company to withdraw or not to file the registration statement. In that event, unless such request of withdrawal was caused by, or made in response to, (i) unless a material adverse effect or a similar event related to the business, properties, condition, or operations of the Company not known (without imputing the knowledge of any other Person to such holders) by the Demanding Holders at the time their request was made, or other material facts not known to such Demanding Holders at the time their request was made, or (ii) a material adverse change in the financial markets, the Demanding Holders shall be deemed to have used one of their registration statement rights under Section 3.2(a); provided, however, that such withdrawn registration shall not count as a requested registration pursuant to Section 3.2(a) for purposes of Section 3.2(b)(i) above if the Company shall have been reimbursed (in the absence of any agreement to the contrary, pro rata by the Demanding Holders) for all out-of-pocket expenses incurred by the Company in connection with respect thereto such withdrawn registration.
(e) If, after it has become effective, (iii) if after such registration statement has become effective, not been kept continuously effective for a period of at least 180 days (or such shorter period which will terminate when all the Registrable Securities covered by such registration or the related offerstatement have been sold pursuant thereto), sale or distribution of Registrable Securities thereunder is interfered with by (ii) such registration requested pursuant to Section 3.2(a) becomes subject to any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminatedreason, or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement, if any, agreement entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order some act or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed omission by the Company with the Commission in Demanding Holders, such registration shall not count as a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any requested registration pursuant to Section 2 involves an underwritten offering 3.2(a).
(whether f) If, on or after the receipt by the Company of a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offeringrequest for registration of a Public Offering pursuant to Section 3.2, the Majority Selling Holders, proposed managing underwriter (or underwriters) of such offering reasonably believes that the Initiating Substantial Holder, as number of shares to be registered is less than the case may be, shall have minimum number necessary for the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders success of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of Company will promptly prepare and submit to the Registrable Securities proposed Board, use its best efforts to cause to be sold therein adopted by themthe Board and Stockholders, shall decide which class and, if so adopted, file and cause to become effective, an amendment to its certificate of incorporation so as to cause each Share to be converted into such number of new shares so that the number of shares of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable registered is equal to the Majority Selling Holdersminimum number which such managing underwriter (or underwriters) reasonably believes is necessary for the success of such offering. Each Stockholder and such Stockholder’s Permitted Transferees, securities shall be included vote the Shares held by such Stockholder or Permitted Transferee in favor of adopting such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersamendment.
Appears in 2 contracts
Sources: Stockholders Agreement (Ollie's Bargain Outlet Holdings, Inc.), Stockholders Agreement (Ollie's Bargain Outlet Holdings, Inc.)
Demand Registration. The holders of the Registrable Shares, at any time, may require the Company to effect the registration of Registrable Shares pursuant to this Section 11.2; provided that no registration statement shall be required to be initiated or declared effective prior to the date that the Notes may be converted in accordance with the terms of paragraph 3 of the Notes. The right to demand registration under this Section 11.2 may be exercised on two separate occasions; provided, that if a request is withdrawn in accordance with the terms hereof, it shall not be deemed to be a demand for registration. A shelf registration may be demanded pursuant to this Section 11.2. These demand registration rights may only be exercised if the Majority Registered Holders give notice to the Company to the effect that holders of Registrable Shares intend to (i) If one transfer all or more Holders that own an aggregate of 51% or more any part of the Registrable Shares or (ii) convert all or any part of the Notes and transfer all or any part of the Registrable Shares issuable upon the conversion thereof under such circumstances that a public distribution (within the meaning of the Securities Act) of the Registrable Shares will be involved, then outstanding the Company (A) within 10 days after receipt of such notice shall give written notice of the “Demanding Holders”) shall at any time make a written request proposed registration pursuant to this Section 11.2 to the Companyother holders of Registrable Shares and (B) within 45 days after receipt of such notice from the Majority Registered Holders, the Company shall cause there to be filed with the Commission file a registration statement meeting the requirements of pursuant to the Securities Act (a “Demand Registration”)in order that all Registrable Shares of the holders requesting registration thereof either pursuant to the original notice from the Majority Registered Holders give pursuant to this sentence or by written notice given to the Company during such 45-day period, may be sold under the Securities Act as promptly as is practicable thereafter. The Company shall use its best efforts to cause any such registration to become effective as promptly as is practicable and each Demanding Holder to keep the prospectus included therein current for 135 days after the effective date thereof or until the distribution shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Sharescompleted, as the Demanding Holder shall report in writingwhichever first occurs; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 holders shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving furnish the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of with such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise appropriate information as is required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If as the Company shall have complied with its obligations under this Agreementmay reasonably request in writing. If, a right to demand a registration at the time the Company receives notice pursuant to this Section 2 shall 11.2, it would be deemed impossible or impracticable to have been satisfied (i) if a Demand Registration, upon include the earlier of (x) Company's most recent fiscal year-end financial statements as the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports most recent certified financial statements required to be filed by the Company with the Commission included in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investorsstatement, the Company shall file a Registration Statement on Form S-3 with respect Company's obligation to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 11.2 shall be suspended until the Company's next fiscal year-end financial statements are due in connection accordance with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securitiesapplicable securities law regulations applicable to reporting companies, and at which time the Underwriters’ Representative or Agent Company shall again be required to effect the registration pursuant to this Section 11.2 unless the request for registration has been withdrawn by the Majority Registered Holders. If the managing underwriter for any offering made pursuant to this Section 11.2 (who shall be selected by the Majority Registered Holders, subject to the consent of the Company, which consent shall not be unreasonably withheld) advises each such Selling Holder the Company in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority all of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities Shares requested to be included in such offering (whether registration by Selling Holders or others) exceeds the amount which can be sold in holders of Registrable Shares would materially adversely affect the distribution of all such offering within a price range acceptable to the Majority Selling Holderssecurities, securities then there shall be included in such registration only the shares of the holders of Registrable Shares pro rata based on the number of shares originally proposed to be registered by each holder of Registrable Shares and no other securities of the Company may be included in such registration. In lieu of having its number of Registrable Shares included in the registration reduced pursuant to the previous sentence, any holder of Registrable Shares thereof may, at its sole option, delay its offering and sale for a period not to exceed 120 days after the related registrationeffective date of such registration as such managing underwriter shall reasonably request. In the event of such delay, the Company shall use its best efforts to effect any registration or qualification under the extent Securities Act and the securities or blue sky laws of any jurisdiction as may be necessary to permit such prospective seller to make its proposed offering and sale following the end of such period of delay. A registration will not count as a demand registration under this Section 11.2 until it has become effective and the holders of the amount which can Registrable Shares participating in the demand registration are able to register and sell at least 90% of the Registrable Shares originally requested to be sold within included in such price range, and on a pro rata basis among all Selling Holdersregistration.
Appears in 2 contracts
Sources: Subordinated Note Purchase Agreement (Travis Boats & Motors Inc), Subordinated Note Purchase Agreement (Travis Boats & Motors Inc)
Demand Registration. (ia) If one Subject to Section 1.2(d) and Section ------------------- 1.2(e), if twelve months have elapsed from the date of the Stock Purchase Agreement and the Company has yet to consummate a Public Offering on Form S-1 or more Holders that own Form SB-2, and if the Company shall have received a written request therefor from the record holder or holders of an aggregate of at least 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request issued or issuable to the Companyholders of Preferred Stock, the Company shall cause there to be filed with the Commission prepare and file a registration statement meeting the requirements of under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or covering such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities as are the subject of such request and shall use its best efforts to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that cause such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationstatement to become effective; provided, however, that the Company shall not have postponed registration requested pursuant to this Section 2.1(ii) 1.2 can only be requested if the filing Company has not consummated a Public Offering prior to the requested registration. Upon the receipt of any other Demand Registration statement otherwise required to be prepared and filed pursuant to a registration request meeting the requirements of this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares1.2, the Company shall promptly give written notice of such proposed registration to all Holdersother record holders of Registrable Securities that such registration is to be effected. Any The Company shall include in such Holder may, registration statement such additional Registrable Securities as such other record holders request within twenty thirty (2030) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of the Company's written notice to them. If (i) the holders of a majority of the Registrable Securities for which registration has been requested pursuant to this Agreement each Substantial Holder that shall make a written request Section 1.2 determine for any reason not to proceed with the registration at any time before the related registration statement has been declared effective by the Commission, (ii) such registration statement, if theretofore filed with the Commission, is withdrawn and (iii) the holders of the Registrable Securities subject to such registration statement agree to bear their own Registration Expenses incurred in connection therewith and to reimburse the Company (for the “Initiating Substantial Holder”)Registration Expenses incurred by it in such connection or if such registration statement, if theretofore filed with the Commission, is withdrawn at the initiative of the Company, then the holders of the Registrable Securities shall not be entitled deemed to have exercised their demand registration right pursuant to this Section 1.2.
(b) The method of disposition of all or any number of such Initiating Substantial Holder’s Registrable Securities included in a such registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to an underwritten offering. The managing underwriter of any such offering shall be selected by the attention Company. If in the good faith judgment of the Secretary managing underwriter of the CompanyPublic Offering, and shall specify the inclusion of all of the Registrable Securities the registration of which has been requested would interfere with their successful marketing, the number of Registrable Securities to be registeredincluded in the offering shall be reduced, pro --- rata, among the intended methods requesting holders thereof in proportion to the number of disposition ---- Registrable Securities included in their respective requests for registration. Registrable Securities that are so excluded from the underwritten Public Offering shall be withheld by the holders thereof for such period, not exceeding one hundred and twenty (120) days, that the request managing underwriter reasonably determines is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect the Offering. The Company shall have the right to include any securities in a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date be filed as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness part of a demand registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement1.2.
2.4. (c) The Company shall be obligated to effect no more than three Demand Registrations prepare, file and such number cause to be effective only one (1) registration statement pursuant to this Section 1.2.
(d) Notwithstanding the foregoing, the Company may delay initiating the preparation and filing of Shelf Registrations as may be necessary any registration statement requested pursuant to provide each and every Substantial Holder with this Section 1.2 for a period not to exceed one hundred eighty (180) days if in the right to request one Shelf Registration. For purposes good faith judgment of the preceding sentenceCompany's Board of Directors effecting the registration would adversely affect a proposed Public Offering by the Company or would require the premature disclosure of any financing, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effectiveacquisition, (ii) if after such registration statement has become effectivedisposition of assets or stock, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction merger or other order comparable transaction or requirement would require the Company to make public disclosure of information the public disclosure of which would have material adverse effect on the Company.
(e) Notwithstanding anything to the contrary contained herein, and without limitation as to the rights of the Commission or other governmental agency or court Company to include in a demand registration securities for sale for its own account as provided in Section 1.2(a), at any reason not attributable time within thirty (30) days after receiving a demand for registration, the Company may elect to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified effect an underwritten primary registration in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part lieu of the Selling Holdersrequested registration. If the Company so elects, the Company shall have complied with give prompt written notice to all holders of Registrable Securities of its obligations under this Agreement, a right intention to demand effect such a registration pursuant and shall afford such holders the rights contained in Section 1.3 with respect to this Section 2 "piggyback" registrations. In such event, the demand for registration shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiatedwithdrawn.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Purchase Agreement for Series a Convertible Preferred Stock (Fieldworks Inc), Stock Purchase Agreement (Fieldworks Inc)
Demand Registration. 2.1 If the Company shall receive on or after the date that is nine (i9) If one or more Holders that own an aggregate months following the date hereof a written request from the holders of 51% or more a majority of the Registrable Securities then outstanding (the “Demanding HoldersInitiating Investors”) shall at any time make a written request to the Company, that the Company shall cause there to be filed with the Commission file a registration statement meeting under the requirements Securities Act for an offering of the Registrable Securities on a continuous basis pursuant to Rule 415 under the Securities Act (a “Demand Registration”), covering the registration of Registrable Securities with an aggregate offering price, net of any placement agent fees, broker’s fees, and each Demanding Holder shall be entitled to have included therein commissions on similar discounts, fees or commissions, of at least $5 million, then the Company shall, within ten (subject to Section 2.710) all or such number days of such Demanding Holder’s Registered Sharesthe receipt thereof, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date give written notice of such request a Demand Registration Statement pursuant to all holders of the Registrable Securities and shall, subject to the limitation of this Section 2.1 shall have been declared effective 2.1, use its reasonable best efforts to effect as soon as practicable, and in any event within ninety (90) days of the receipt of such request, the registration under the Securities Act of all Registrable Securities which the holders request to be registered within twenty (20) days of the mailing of such notice by the CommissionCompany. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, Company and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof which shall not include any underwritten, agency or similar method and that the request is for a Demand Registration pursuant to this Section 2.1(i).2.1. In connection with the Demand Registration, the Company shall:
(iia) The Company shall be Be entitled to postpone for up to one hundred twenty ninety (12090) days from the date of request of the Initiating Investor the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board board of directors of the Company determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any)judgment, that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders Initiating Investors notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).;
(iiib) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s Use its reasonable best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, and in each instance any event within ninety (90) days of the receipt of the request for the registration, giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.;
(iic) Use the Company’s its reasonable best efforts to keep the relevant registration statement Continuously Effective for the lesser of two (x2) if a Demand Registration, for up to two hundred seventy (270) days years or until such earlier date time as of which all the holders who included Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and Statement no longer hold any Registrable Securities (y) if a Shelf Registration, for three yearsthe “Registration Period”). Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii)or postponed, the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.; and
2.4. The Company shall be (d) Be obligated to effect no more than three one (1) Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, or (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders Investors and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. 2.2 A registration pursuant to this Section 2 shall be on Form S-3 such appropriate registration form of the Commission as shall (i) be selected by the Company and be reasonably acceptable to the Majority Selling Investors and (ii) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. 2.1.
2.3 The Company agrees shall furnish to file all reports required one firm of counsel for the Selling Investors (selected by Majority Selling Investors) copies of the filed registration statement or prospectus or any amendments or supplements thereto in the form substantially as proposed to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than least five (5) business days after prior to filing for review and comment by such counsel, which opportunity to comment shall include the right to contest disclosure if the applicable Selling Investor reasonably believes that such disclosure contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
2.4 The Company shall prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act and rules thereunder with respect to the disposition of all securities covered by such registration statement. The Company shall amend the registration statement or supplement the prospectus so that it will remain current and in compliance with the requirements of the Securities Act for the Registration Period, and if during such period any event or development occurs as a result of which the registration statement or prospectus contains a misstatement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, the Company first meets shall promptly notify each Selling Investor, amend the registration eligibility statement or supplement the prospectus so that each will thereafter comply with the Securities Act and transaction requirements furnish to each Selling Investor of Registrable Securities such amended or supplemented prospectus, which each such Investor shall thereafter use in the Transfer of Registrable Securities covered by such registration statement. Pending such amendment or supplement each such Investor shall cease making offers or Transfers of Registrable Securities pursuant to the prior prospectus. In the event that any Registrable Securities included in a registration statement subject to, or required by, this Agreement remain unsold at the end of the period during which the Company is obligated to use its reasonable best efforts to maintain the effectiveness of such registration statement, the Company may file a post-effective amendment to the registration statement for the purpose of removing such Securities from registered status.
2.5 The Company shall furnish to each Selling Investor of Registrable Securities, without charge, such numbers of copies of the registration statement, any pre-effective or post-effective amendment thereto, the prospectus, including each preliminary prospectus and any amendments or supplements thereto, in each case in conformity with the requirements of the Securities Act and the rules thereunder, and such other related documents as any such Selling Investor may reasonably request in order to facilitate the disposition of Registrable Securities owned by such Selling Investor.
2.6 The Company shall use its reasonable best efforts (i) to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of Form S-3 for such states or jurisdictions as shall be reasonably requested by the Majority Selling Investors, and (ii) to obtain the withdrawal of any order suspending the effectiveness of a registration statement, or the lifting of any suspension of the qualification (or exemption from qualification) of the offer and sale by transfer of any of the InvestorsRegistrable Securities in any jurisdiction, at the earliest possible moment; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business, subject itself to taxation in any such states or jurisdictions or to file a Registration Statement on Form S-3 with respect general consent to the Registrable Securities covered service of process in any such states or jurisdictions.
2.7 The Company shall promptly notify each Selling Investor of any stop order issued or threatened to be issued by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) Commission in connection therewith (and include in take all reasonable actions required to prevent the entry of such Registration Statement on Form S-3 stop order or to remove it if entered).
2.8 The Company shall make generally available to its security holders an earnings statement satisfying the information required by Rule 429 under the Securities Actprovisions of Section 11(a) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under of the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the end of the twelve (12)-month period beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of filing each registration statement filed pursuant to this Agreement.
2.9 The Company shall make available for inspection by any Selling Investor and the representatives of such Registration Statement Selling Investor (or amendmentbut not more than one firm of counsel to such Selling Investors). Notwithstanding , all financial and other information as shall be reasonably requested by them, and provide the foregoing, Selling Investor and the representatives of such Selling Investor the opportunity to discuss the business affairs of the Company shall use with its commercially reasonable efforts to meet principal executives and independent public accountants who have certified the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any audited financial statements included in such registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”statement, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holderin each case, as shall be necessary to enable them to exercise their due diligence responsibility under the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offeringSecurities Act; provided, however, that each information that the Company determines, in good faith, to be confidential and which the Company advises such Person so selected in writing, is confidential shall not be disclosed unless such Person signs a confidentiality agreement reasonably acceptable satisfactory to the Company or the related Selling Investor of Registrable Securities agrees to be responsible for such Person’s breach of confidentiality on terms reasonably satisfactory to the Company.
2.7. Whenever the 2.10 The Company shall effect provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration pursuant statement from and after a date not later than the effective date of such registration statement.
2.11 The Company shall use its reasonable best efforts to this Section 2 in connection with an underwritten offering by one provide a CUSIP number for the Registrable Securities prior to the earlier of the listing of such Registrable Securities on the New York Stock Exchange or more Selling Holders the effective date of the first registration statement including Registrable Securities: (i) if .
2.12 The Company shall take such Selling Holders have requested other actions as are reasonably required in order to expedite or facilitate the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class disposition of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersDemand Registration.
Appears in 2 contracts
Sources: Investment Agreement (Urstadt Biddle Properties Inc), Registration Rights Agreement (Urstadt Biddle Properties Inc)
Demand Registration. If the Company shall receive, at any time after the date of this Agreement, a written request (ia "Demand") If one or more from the Holders that own an aggregate of 51at least 25% or more of the Registrable Securities then outstanding that the Company file a registration statement (other than on Form S-3) under the Act covering the registration of at least 25% of the Registrable Securities then outstanding, then the Company shall give written notice of such request (the “Demanding Holders”"Notice of Demand") shall at any time make to all Holders and shall, subject to the limitations set forth below, use its best efforts to effect as soon as practicable the registration under the Act of all Registrable Securities that the Holders request to be registered in (a) the Demand or (b) a written request given within twenty (20) days of the mailing of the Notice of Demand by the Company. Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2, a certificate signed by the Chief Executive Officer or other responsible officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, including a majority of the directors designated by Purchasers, it would be seriously detrimental to the CompanyCompany and its shareholders for such registration statement (or any amendment thereto) to be filed and it is therefore essential to defer the filing of such registration statement (or any amendment thereto), the Company shall cause there have the right to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or defer such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is filing for a Demand Registration pursuant to this Section 2.1(i).
period of not more than ninety (ii90) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationadditional days; provided, however, that the Company shall not have postponed pursuant only be able to this Section 2.1(iidefer any Demand one (1) the filing of time in any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 24-month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Sharesperiod. In addition, the Company shall promptly give written notice of such proposed registration not be required to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in file a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected if (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iiia) if the conditions Holders, together with the Holders of any other securities of the Company entitled to closing specified inclusion in the underwriting agreementsuch registration, propose to sell Registrable Securities and such other securities (if any, entered into in connection with such registration are not satisfied ) at an aggregate price to the public of less than $300,000 or waived, other than by reason of a failure on the part of the Selling Holders. If (b) if the Company shall have complied with its obligations under this Agreementhas, a right to demand within 180 days preceding the date of such request, already effected a registration for the Holders pursuant to this Section 2 shall be deemed 2. The Company is obligated to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration effect only three registrations pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.22.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Briazz Inc), Registration Rights Agreement (Briazz Inc)
Demand Registration. (i) If At any time on or after the date six months after the date hereof , if one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the CompanyCompany (the "Demanding Holders"), the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s 's Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six nine (69) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty ninety (12090) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or of Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 twelve (12) month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all other Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s 's Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “"Initiating Substantial Holder”"), shall be entitled to have all or any number of such Initiating Substantial Holder’s 's Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “"Shelf Registration”"). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s 's best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s 's best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy ninety (27090) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three (3) years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three four Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy ninety (27090) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 such appropriate registration form of the Commission as shall (i) be selected by the Company and be reasonably acceptable to the Majority Selling Holders, or by the Initiating Substantial Holder, as the case may be, and (ii) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sonera Corp), Registration Rights Agreement (Voicestream Wireless Holding Corp)
Demand Registration. (i) If 2.1. At any time after 60 days from the effective date of the Initial Public Offering of the Company’s securities pursuant to a registration statement filed under the Securities Act if one or more Holders that own an aggregate of 5140% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the CompanyCompany (the “Demanding Holder”), the Company shall cause there to be filed with the Commission a registration statement on Form S-1 or other applicable form meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.72.9) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, Company and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i)2.1. The Company shall not be required to effect filing of a registration statement pursuant to this Section 2.1 more than once for the holders of Registrable Securities as a group; provided, that a registration statement shall not count as a Demand Registration requested under this Section 2.1 unless and until it has become effective and the holders requesting such registration are able to register and sell at least 50% of the Registrable Securities requested to be included in such registration.
(ii) 2.2. The Company shall be entitled to postpone for up to one hundred twenty (120) 60 days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the written concurrence of the managing underwriter, if any), that such registration and the Transfer or of Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders Holder notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) 2.2 the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 2.2 during the 24 12 month period ended on the date of the relevant request pursuant to Section 2.1(i)2.1.
(iii) 2.3. Whenever the Company shall have received a demand pursuant to Section 2.1(i) 2.1 to effect the registration of any Registrable SharesSecurities, the Company shall promptly within 10 Business Days of the receipt of such written request, give written notice of such proposed registration to all HoldersHolder. Any such Holder may, within twenty (20) 20 days after receipt of such notice, request in writing that all of such Holder’s Registrable SharesSecurities, or any portion thereof designated by such Holder, be included in the registration.
2.22.4. On or At any time after 60 days from the effective date of this Agreement the Initial Public Offering of the Company’s securities pursuant to a registration statement filed under the Securities Act, each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis on Form S-3 or other applicable form pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 2.4 shall be addressed to the attention of the Secretary of the Company, Company and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.22.4.
2.32.5. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) 180 days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statementregistration statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii)2.2, the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Exchange Agreement (First Choice Healthcare Solutions, Inc.), Exchange Agreement (First Choice Healthcare Solutions, Inc.)
Demand Registration. All expenses other than stock ------------------- transfer taxes and underwriting discounts and commissions incurred in connection with registrations, filings or qualifications pursuant to Section 1.2, including (iwithout limitation) If one or more Holders that own an aggregate all registration, filing and qualification fees, printers' and accounting fees, fees and disbursements of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to counsel for the Company, and the Company shall cause there to be filed reasonable fees and disbursements of one (1) counsel for the selling Holders selected by them with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary approval of the Company, and which approval shall specify the number of Registrable Securities to not be registeredunreasonably withheld, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days borne by the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationCompany; provided, however, that the Company shall not have postponed pursuant be required to this Section 2.1(ii) the filing pay for any expenses of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request registration proceeding begun pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect 1.2 if the registration of any Registrable Shares, request is subsequently withdrawn at the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by themregistered (in which case all withdrawing Holders shall bear such expenses), shall decide which class unless (i) the Holders of a majority of the Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and agree to forfeit their right to one (1) demand registration pursuant to Section 1.2 (ii) if the Underwriters’ Representative withdrawal is due to the occurrence of a material adverse effect regarding the Company or Agent advises each such Selling Holder its business which was not known by the Initiating Holders prior to their request for registration, (iii) the withdrawal is due to the Company exercising its right to defer the registration pursuant to Section 1.2(c), Section 1.2(d)(ii) or Section 1.4(b)(3), or (iv) the Initiating Holders withdraw the registration following a limitation by the underwriter in writing that, in its opinion, the amount number of securities requested shares to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable underwritten pursuant to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersSection 1.2(b).
Appears in 2 contracts
Sources: Investors' Rights Agreement (Replaytv Inc), Investors' Rights Agreement (Replaytv Inc)
Demand Registration. (i1) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make Upon a written request demand by a holder or holders of at least 250,000 Exchange Shares (or such other equivalent number of shares as may result from a reclassification, subdivision or combination of Leucadia Shares into a greater or smaller number of shares) that not less than 250,000 of such Exchange Shares be registered (which demand shall specify its intended method of disposition), Leucadia shall promptly give written notice of such demand to all other holders of Exchange Shares and shall use its best efforts to effect the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of under the Securities Act of:
(a) the Exchange Shares which Leucadia has been demanded to register pursuant to this paragraph D for a “Demand Registration”)disposition in accordance with the proposed method of disposition described in said demand; and
(b) all other Exchange Shares the holders of which shall have made written request (stating the proposed method of disposition of such securities by prospective Seller) to Leucadia for the registration thereof within 20 days after giving of such written notice by Leucadia, all to the extent requisite to permit the disposition (in accordance with the proposed methods thereof, as aforesaid, as long as such proposed methods are consistent with the original demand) by the prospective Seller or Sellers of such securities.
(2) Leucadia’s obligation to effect a registration hereunder is subject to the conditions that:
(a) TLC and each Demanding Holder its transferees shall not be entitled to have included therein (subject to Section 2.7) all more than a total of five separate registration statements on Form ▇-▇, ▇-▇ or such number other comparable short form of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writingregistration statement; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective S-3 or comparable short form need by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the 90th day after the end of any fiscal year of Leucadia or the date as of on which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings Leucadia’s audited financial statements for such an orderfiscal year are available, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 nor shall more than one such form be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by in any 12-month period.
(b) Leucadia shall not be required to have a special audit of its financial statements for inclusion in such Registration Statement; but if the Company with rules and regulations of the Commission in otherwise require such a timely manner so as to remain eligible special audit, Leucadia may delay the filing or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use effectiveness of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement until such time as Leucadia receives its audited financial statements for its then current fiscal year.
(c) Leucadia shall not be required to effect any registration in accordance with paragraph D(1) hereof if (i) in the written opinion of counsel to Leucadia such registration may not be appropriately effected in light of any material pending transaction of Leucadia or its subsidiaries, or (ii) any registration of any underwritten public offering of securities made on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared behalf of Leucadia has become effective no later than within ninety (90) days after prior to the anticipated effective date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration requested pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Companyparagraph D(1) hereof.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Jefferies Group Inc /De/), Stock Purchase Agreement (Jefferies Group Inc /De/)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) Company shall receive, at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make Agreement, a written request from one or more Holders holding, or having the present right to acquire, at the time of the request at least 51% of the Registrable Securities, that the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in file a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 statement under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to covering the attention registration of all or part of the Secretary of the CompanyRegistrable Securities, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, then the Company shall:
shall (i) File if such request is received from fewer than all Holders, give prompt written notice of such requested registration to all other Holders, so that such other Holders shall have the opportunity to join in such request, and (ii) subject to the limitations of Sections 1.3(c) and (e), 1.5 and 1.7 hereof, within 30 days of the receipt by the Company of such written request, file a registration statement with on any appropriate form under the Commission Securities Act. The Company agrees to use its Reasonable Efforts to cause such registration statement to be declared effective as promptly as practicable, practicable and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, it effective for up to two hundred seventy (270) days or until such earlier date as period of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations time as may be necessary to provide each and every Substantial Holder with permit the right to request one Shelf Registration. For purposes consummation of the preceding sentenceoffering of the Registrable Securities covered thereby.
(b) The Registrable Securities registered pursuant to this Section 1.3 may, at the option of the Holders holding at least 51% of the Registrable Securities being registered, be offered and sold in firm commitment underwritten offerings. The underwriter or underwriters conducting such offerings shall be selected by the Holder or Holders holding at least 51% of the Registrable Securities being registered; provided, that the managing underwriters in connection with each such offering shall be nationally recognized as underwriters of securities.
(c) The Company is obligated to effect two registrations pursuant to this Section 1.3 (in addition to any registrations in which the Holders may participate pursuant to the other provisions of this Agreement), one of which may be, at the option of the Holders holding at least 51% of the Registrable Securities being registered, a shelf registration which shall be required to be effective for a period of one year. A registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto it has become effective, (ii) if after effective and remained effective until the Registrable Securities registered under such registration statement have been sold.
(d) Other than the Registrable Securities, no securities (including without limitation any securities with respect to which any Person has become effective, such registration or any rights under the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable agreement referred to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than last sentence of Section 1.11 hereof) shall be included among the securities covered by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration effected pursuant to this Section 2 shall be deemed to have been satisfied 1.3 unless (i) if a Demand Registration, upon the earlier of (x) the date as of which all Holder or Holders holding 51% of the Registrable Securities included therein to be covered thereby shall have been disposed of pursuant consented in writing to the Registration Statement, and (y) the date as inclusion of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and other securities or (ii) if a Shelf Registration, upon the effective date managing underwriters of a Shelf Registration, provided no stop order the offering shall have advised such Holder or similar order, Holders in writing that the inclusion of such other securities would not adversely affect such offering or proceedings the subsequent trading market or market price for such an order, is thereafter entered or initiatedthe Common Units.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i(e) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts not be required to meet the requirements of Form S-3 for so long as register any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities1.3: (i) during a reasonable period of time, not to exceed 120 days, following the initial distribution of securities by the Company pursuant to a registered underwritten public offering if such Selling Holders have requested offering was commenced prior to the inclusion therein time the Company receives the request contemplated by Section 1.3(a), or (ii) during a reasonable period of more than one class time, not to exceed 60 days, with respect to which the Board of Registrable Securities, and Directors of the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class Managing General Partner has determined that a registration of Registrable Securities pursuant to this Section 1.3 would adversely affect such offering, the Demanding Holders holding Company because of a material non-public acquisition or similar material transaction that is pending at least a majority of the Registrable Securities proposed to be sold therein time the Company receives the request contemplated by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersSection 1.3(a).
Appears in 2 contracts
Sources: Registration Rights Agreement (Varde Partners Inc), Registration Rights Agreement (Varde Partners Inc)
Demand Registration. (i) If one At any time on or more Holders that own an aggregate of 51% or more after the third anniversary of the Registrable Securities then outstanding (Closing Date, or after such earlier date as the “Demanding Holders”) Holder shall at any time be entitled to transfer shares of Class B Stock pursuant to the provisions of Section 9.1.2 of the Investment Agreement, if the Holder shall make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding the Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares's Registrable Securities, as the Demanding Holder shall report request in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six twelve (612) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) 180 days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.12.1 (or delay seeking effectiveness of a Registration Statement which has been filed), if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any)judgment, that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition acquisition, reorganization or reorganization other material matter involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders Holder notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month 180-day period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and and, subject to Section 2.1(ii), shall use the Company’s best 's reasonable efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best 's reasonable efforts to keep the relevant registration statement Continuously Effective (x) Effective, if a Demand Registration, for up to two hundred seventy (270) 60 days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, filing of the Registration Statement or seeking effectiveness thereof is postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.42.3. The Company shall be obligated to effect no more than three two Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf RegistrationRegistrations. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders Holder and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling HoldersHolder. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) [90] days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.52.4. A registration pursuant to this Section 2 shall be on Form S-3 such appropriate registration form of the Commission as shall (i) be selected by the Company and be reasonably acceptable to the Holder, and (ii) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.62.5. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “"firm”", “"best efforts” " or “"all reasonable efforts” " basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dekalb Genetics Corp), Registration Rights Agreement (Monsanto Co)
Demand Registration. (a) Subject to the provisions of Section 2.7, at any time and from time to time on or after the date hereof, each of (i) If one or more the Gores Holders that own an aggregate of 51% or more at least a majority in interest of the then-outstanding number of Registrable Securities then outstanding held by the Gores Holders (the “Gores Demanding Holders”), and (ii) AGSA (together with the Gores Demanding Holders, the “Demanding Holders”) shall at any time ), may make a written request to demand for Registration of all or part of their Registrable Securities on (1) Form F-1 or (2) if available, Form F-3, which in the Companycase of either clause (1) or (2), the Company shall cause there to may be filed with the Commission a shelf registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act Act, which written demand shall describe the amount and type of securities to be included in such Registration and the intended method(s) of distribution thereof (such written demand a “Shelf Demand Registration”). Any request made The Company shall, promptly following the Company’s receipt of a Demand Registration, notify, in writing all other Holders of Registrable Securities of such demand, and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in a Registration pursuant to this Section 2.2 a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”) shall be addressed to the attention of the Secretary of so notify the Company, and shall specify in writing, within ten (10) days after the number receipt by the Holder of Registrable Securities the notice from the Company. For the avoidance of doubt, to be registered, the intended methods of disposition thereof and that the request is for extent a Shelf Requesting Holder also separately possesses Demand Registration rights pursuant to this Section 2.2.
2.3, but is not the Holder who exercises such Demand Registration rights, the exercise by such Requesting Holder of its rights pursuant to the foregoing sentence shall not count as the exercise by it of one of its Demand Registration rights. Following Upon receipt by the Company of any such written notification from a request for Requesting Holder(s) to the Company, subject to Section 2.2(d), such Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to a Demand Registration or a Shelf Registrationand the Company shall effect, as soon thereafter as practicable, the Company shall:Registration of all Registrable Securities requested by the Demanding Holders and Requesting Holders pursuant to such Demand Registration.
(b) Notwithstanding the provisions of Section 2.2(a) or any other part of this Agreement, a Registration pursuant to a Demand Registration shall not count as a Registration unless and until (i) File the registration statement Registration Statement filed with the Commission as promptly as practicable, and shall use the Company’s best efforts with respect to have the registration a Registration pursuant to a Demand Registration has been declared effective under by the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence Commission and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as Company has complied with all of which all the Registrable Securities its obligations under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement Agreement with respect thereto thereto; provided, further, that if, after such Registration Statement has become been declared effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution an offering of Registrable Securities thereunder in a Registration pursuant to a Demand Registration is subsequently interfered with by any stop orderorder or injunction of the Commission, federal or state court or any other governmental agency, the Registration Statement with respect to such Registration shall be deemed not to have been declared effective, unless and until, (1) such stop order or injunction is removed, rescinded or otherwise terminated, and (2) a majority-in-interest of the Demanding Holders initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly notify the Company in writing, but in no event later than ten (10) days after the removal, rescission or other termination of such stop order or requirement injunction, of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminatedelection; provided, or (iii) if the conditions to closing specified in the underwriting agreementfurther, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If that the Company shall have complied not be obligated or required to file another Registration Statement until the Registration Statement that has been previously filed with its obligations under this Agreement, respect to a right to demand a registration Registration pursuant to this a Demand Registration by the same Demand Holder becomes effective or is subsequently terminated.
(c) Subject to the provisions of Section 2 shall be deemed to have been satisfied (i2.2(d) and Section 2.7, if a majority-in-interest of the Demanding Holders so advise the Company as part of their Demand Registration, upon Registration that the earlier of (x) the date as of which all offering of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period be in the form of two hundred seventy an Underwritten Offering, then the right of such Demanding Holder or Requesting Holder (270if any) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the include its Registrable Securities in accordance such Registration shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent provided herein. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this Section 2.2(c), subject to Section 3.3 and Article IV, shall enter into an underwriting agreement in customary form with the intended method or methods of disposition specified in Company and the request pursuant to Section 2.1(iUnderwriter(s) or Section 2.2, respectively. The Company agrees to file all reports required to be filed selected for such Underwritten Offering by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration majority-in-interest of the offer and sale by Demanding Holders initiating the InvestorsDemand Registration, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(iwhich Underwriter(s) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable satisfactory to the Company.
2.7. Whenever the Company shall effect (d) If a registration pursuant Demand Registration is to this Section 2 in connection with be an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, Underwritten Offering and the managing Underwriter or Underwriters’ Representative or Agent , in good faith, advises each such Selling Holder the Company, the Demanding Holders and the Requesting Holders (if any) in writing that, in its opinion, the inclusion of more than one class dollar amount or number of Registrable Securities would adversely affect such offering, that the Demanding Holders holding at least and the Requesting Holders (if any) desire to sell, taken together with all other Shares or other equity securities that the Company desires to sell for its own account and the Shares, if any, as to which a majority Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other stockholders of the Registrable Securities proposed Company who desire to be sold therein by themsell, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the maximum dollar amount which or maximum number of equity securities that can be sold in such Underwritten Offering without adversely affecting the proposed offering within a price range acceptable to price, the Majority Selling Holderstiming, securities the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall be included include in such offering Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding Holders and the related registrationRequesting Holders (if any) (pro rata based on the total amount of Registrable Securities held by each such Demanding Holder and Requesting Holder (if any) (such proportion is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the amount foregoing clause (i), the Shares or other equity securities that the Company desires to sell for its own account, which can be sold within without exceeding the Maximum Number of Securities; and (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Shares or other equity securities of other persons or entities that the Company is obligated to register in a Registration pursuant to separate written contractual arrangements with such price range, persons and on a pro rata basis among all Selling Holdersthat can be sold without exceeding the Maximum Number of Securities.
Appears in 2 contracts
Sources: Registration Rights and Lock Up Agreement (Ardagh Metal Packaging S.A.), Registration Rights and Lock Up Agreement (Gores Holdings v Inc.)
Demand Registration. (ia) If one or more From and after January 1, 2001, the Holders that own an aggregate of 51at least 66 2/3% or more of the then outstanding Registrable Securities then outstanding (may notify the “Demanding Company in writing that such Holders desire for the Company to cause all or a portion of such notifying Holders”) shall at any time make a written request ' Registrable Securities to be registered for sale to the Companypublic under the Act. Upon receipt of such written request, the Company will promptly notify in writing all other Holders of Registrable Securities of such request, which Holders shall within twenty days following such notice from the Company notify the Company in writing whether such persons desire to have Registrable Securities held by them included in such offering. The Company will, promptly following the expiration of such twenty day period, prepare and file subject to the provisions of this Section 1, and use its best efforts to prosecute to effectiveness, an appropriate filing with the SEC of a registration statement covering such Registrable Securities and the proposed sale or distribution thereof under the Act.
(b) Notwithstanding anything in this Section 1.2 to the contrary, the Company shall cause there not be obligated to be filed with the Commission a prepare or file any registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior 1.2 or to prepare or file any amendment or supplement thereto, at any time when the date of such request Company delivers a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective certificate signed by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention Company's Chief Executive Officer or Chairman of the Secretary Board stating that in the good faith judgment of the Board of Directors of the Company that the filing thereof at the time requested, or the offering of securities pursuant thereto (i) would materially adversely affect a pending or proposed public offering of the Company's securities, and shall specify the number of Registrable Securities to be registeredor an acquisition, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
merger, recapitalization, consolidation, reorganization or similar transaction, negotiations, discussions or pending proposals with respect thereto or (ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days would materially adversely affect the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence business or prospects of the managing underwriterCompany in view of the disclosures that may be required thereby of information about the business, if any)assets, that such registration and the Transfer liabilities or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving operations of the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationnot theretofore disclosed; provided, however, that the filing of a registration statement, or any supplement or amendment thereto, by the Company shall not have postponed may be deferred pursuant to this Section 2.1(ii1.2 for no longer than 180 days (but only once in every twelve month period) after the delivery of such demand notice.
(c) Notwithstanding anything in this Section 1.2 to the contrary: (i) the filing of any other Demand Registration statement otherwise Company shall not be required to be prepared and filed effect the registration of the Registrable Securities pursuant to this Section 2.1 during the 24 1.2 more than one time in any twelve month period ended and no more than three times in the aggregate; and (ii) the Company shall not be required to effect any such registration unless at least $5 million of Registrable Securities are to be sold in such registration (with such amount being determined based on the market price of the Common Stock on the date of the relevant request pursuant to Section 2.1(iinitiating Holder(s) request).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to this Section 2 involves 1.2 is in the form of an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, Company will select and obtain the investment banker or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters investment bankers and manager or managers that will administer the offering, which investment bankers must offer terms which are reasonably competitive in the marketplace for similar size companies and similar offerings. The Company shall (together with all Holders proposing to administer distribute Registrable Securities through such underwritten offering or underwriting) enter into an underwriting agreement, containing usual and customary terms, with the placement agent or agents managing underwriter selected for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7underwriting. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class If any holder of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The Registrable Securities proposed to so withdrawn shall also be sold therein by themwithdrawn from registration.
(d) If any registration statement under this Section 1.2 is not declared effective (except as a result of Holders withdrawing Registrable Securities), shall decide which class then the holders of Registrable Securities may request an additional registration under this Section 1.2.
(e) No registrations effected under this Section 1.2 shall be included therein in such offering and relieve the related registrationCompany of its obligations to effect any registrations under, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable pursuant to the Majority Selling Holdersterms of, securities shall be included in such offering Sections 1.3 and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders1.4 hereof.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Mobility Electronics Inc), Investor's Rights Agreement (Mobility Electronics Inc)
Demand Registration. (ia) If one Subject to the conditions of Section 2.1, if the Company receives a written request (the “Demand Request”) from an Initiating Holder or more Holders that own an aggregate the Company file a registration statement under the Securities Act covering the registration of 51% or more of the Registrable Securities then outstanding outstanding, then the Company will, within 10 days after the receipt thereof, give written notice of the Demand Request to all other Holders (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand RegistrationNotice”), and each Demanding Holder shall be entitled the other Holders will have 20 days after receipt of the Demand Notice to have included therein (subject notify the Company, in writing, of their desire to participate in the requested registration. Subject to the limitations of this Section 2.7) all or such number of such Demanding Holder’s Registered Shares2.1, the Company will use its reasonable efforts to effect, as soon as practicable, the Demanding Holder shall report registration under the Securities Act of all Registrable Securities that the Holders request to be registered.
(b) The Company will not be obligated to effect any registration, qualification or compliance pursuant to this Section 2.1:
(i) if the Holders propose to sell Registrable Securities for gross proceeds of less than $15,000,000;
(ii) if the Company furnishes to the Holders a certificate signed by a duly authorized officer of the Company stating that in writingthe good faith judgment of the Board of Directors of the Company, it would be detrimental to the Company and its stockholders for the demand registration to be effected at that time, in which event the Company will have the right to defer the filing of the demand registration statement for a period of not more than 90 days after receipt of the request of the Holders under this Section 2.1; provided, however, that no the right to delay a request may be made exercised by the Company not more than once in any 12-month period;
(iii) if the Company has already effected four registrations for the Holders pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement or one registration pursuant to this Section 2.1 shall have within the preceding 12 months (counting for these purposes only a registration that has been declared or ordered effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof SEC and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would not materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or such requirement of the Commission SEC); or
(iv) in any particular jurisdiction in which the Company would be required to qualify to do business or other governmental agency or court for any reason not attributable to execute a general consent to service of process in effecting the Selling Holders and such interference registration, unless the Company is not thereafter eliminated, or already subject to service in that jurisdiction.
(iiic) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right is required to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if effect a Demand Registration, upon the earlier of (x) Company will file a Form S-3 registration statement or another form available for registering Registrable Securities for sale to the date as of which all of public, covering the Registrable Securities included therein shall have been disposed so requested to be registered as soon as practicable after receipt of pursuant to the Registration Statement, and (y) request of the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiatedHolders.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i(d) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof Initiating Holders intend to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to distribute the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required Demand Request by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other formmeans of an underwritten public offering, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, they will so advise the Company shall use its commercially reasonable efforts to meet in the requirements of Form S-3 for so long as any Registrable Securities remain outstanding Demand Request, and under no circumstances shall the Company be obligated will include that information in the Demand Notice. The right of any Holder to file a Registration State on participate in any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 2.1 will be conditioned upon that Holder’s participation in connection with an the underwritten public offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of that Holder’s Registrable Securities would adversely affect in the underwritten public offering (unless otherwise mutually agreed to by a majority-in-interest of the Initiating Holders and that Holder) to the extent provided herein. If the Company requests inclusion in the registration of securities being sold for its own account, or if other Persons (as a result of contractual “piggyback” registration rights, invitation by the Company or otherwise) request inclusion in a Demand Registration pursuant to this Section 2.1, the Initiating Holders will, on behalf of all Holders, offer to include such securities in the underwritten public offering contemplated by the Demand Request, subject to the cutback provisions of this Section 2.1(d). The Company will (together with all Holders and other Persons requesting inclusion of securities in any registration pursuant to this Section 2.1) enter into an underwriting agreement in customary form with the underwriter(s) reasonably acceptable to the Company and selected for the underwritten public offering by a majority in interest of the Initiating Holders. If the underwriter(s) advises the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be included in the underwritten public offering, (1) the Demanding Company will so advise all Holders holding at least a majority of the who have requested to include Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount number of securities requested shares of Registrable Securities to be included in such the Demand Registration and underwritten public offering (whether by Selling will be allocated among the Holders or others) exceeds the amount which can be sold requesting registration in such offering within a price range acceptable proportion, as nearly as practicable, to the Majority Selling respective number of shares of Registrable Securities held by each Holder (or in any other proportions as is mutually agreed to by the selling Holders), and (2) the Common Stock or other and the securities shall requested by other Persons to be included in such offering and the related registrationDemand Registration as a result of contractual, “piggyback” registration rights, invitation by the Company, or otherwise, as well as any securities to be offered by the Company for its own account, will be excluded from the Demand Registration prior to the exclusion of any Registrable Securities held by any Holders. If any Holder who has requested to include Registrable Securities in a Demand Registration does not agree to the terms of any underwritten public offering, that Holder will be excluded therefrom by written notice from the Company, the underwriter(s), or the Initiating Holders. If, by exclusion of that Holder from the underwritten public offering, a greater number of Registrable Securities held by other Holders may be included in the underwritten public offering, the Company will offer to all other Holders who have requested to include Registrable Securities in the registration the right to include additional Registrable Securities in proportion, as nearly as practicable, to the extent respective number of shares of Registrable Securities held by each participating Holder (or in any other proportions as is mutually agreed to by the selling Holders). Any Registrable Securities, Common Stock or other securities excluded or withdrawn from the underwritten public offering contemplated by the Demand Request will also be excluded from the corresponding registration statement.
(e) Only two of the amount which can four demand registration rights permitted under this Section 2.1 may be sold within such price rangeexercised by Early, any Affiliates of Early and any assignees of Early in accordance with Section 3.8, in the aggregate, and on a pro rata basis among all Selling Holdersonly two demand registration rights permitted under this Section 2.1 may be exercised by Prides, any Affiliates of Prides and any assignees of Prides in accordance with Section 2.8, in the aggregate.
Appears in 2 contracts
Sources: Registration Rights Agreement (Prides Capital Partners, LLC), Registration Rights Agreement (QC Holdings, Inc.)
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at At any time make a written request following 180 days from the date hereof, the Warrantholders shall have the right (which right is in addition to the Companyregistration rights under Section 11(b) hereof), exercisable by written notice to the Company shall cause there after that date, to be filed have the Company prepare and file with the Commission Commission, on one occasion, a registration statement meeting and such other documents, including a prospectus, as may be necessary in the requirements opinion of both counsel for the Company and counsel for the Warrantholders, in order to comply with the provisions of the Securities Act (Act, so as to permit a “Demand Registration”), public offering and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention sale of the Secretary Warrant Securities for the earlier of (i) one year following the effectiveness of the Company, and shall specify registration statement or (ii) until all of the number of Registrable Warrant Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i)are sold.
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts may delay the filing or effectiveness of any registration statement for a period of up to meet 180 days after the requirements receipt of Form S-3 a demand for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering subsection (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise)a) above if at the time of receipt of such demand the Company is engaged, or an agented offeringhas fixed plans to engage within 90 days of the time of such request, in a firm commitment underwritten public offering of Primary Shares in which the Majority Selling HoldersCompany may include Warrant Securities pursuant to and subject to the limitations of Section 11(b);
(iii) The Warrantholders, or upon receipt of any notice from the Initiating Substantial Holder, as Company of any event of the case may bekind described in Section 11(d)(ix) hereof, shall have forthwith discontinue disposition of the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable Warrant Securities pursuant to the registration statement covering such Warrant Securities until such holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 11(d)(ix) hereof, and, if so directed by the Company.
2.7. Whenever , such holder shall deliver to the Company shall effect a registration pursuant to this Section 2 all copies, other than permanent file copies then in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securitiesholder's possession, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable prospectus covering such Warrant Securities proposed to be sold therein by them, shall decide which class at the time of Registrable Securities shall be included therein in receipt of such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersnotice.
Appears in 2 contracts
Sources: Warrant Agreement (Pcsupport Com Inc), Warrant Agreement (Pcsupport Com Inc)
Demand Registration. (i) If At any time on or after the date of the first to occur of (a) the second anniversary of the Closing, (b) a Company Change in Control, (c) a single party or affiliated group making a bona fide offer to acquire, acquiring or entering into an agreement to acquire 33% or more of the outstanding voting stock of the Company, or (d) Holder being compelled to sell its Shares pursuant to Section 5.5 of the Investment Agreement, if one or more Holders that own an aggregate market value of 51% $15,000,000 or more at the time of the request of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”"DEMAND REGISTRATION"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7SECTION 2.6) all or such number of such Demanding Holder’s Registered Shares, 's Registrable Securities as the Demanding Holder Holders shall report designate pursuant to SECTIONS 2.1(i) or (iii) hereof in writing; providedPROVIDED, howeverHOWEVER, that no request may be made pursuant to this Section SECTION 2.1 if within six (6) 9 months prior to the date of such request a Demand Registration Statement statement pursuant to this Section SECTION 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section SECTION 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section SECTION 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) 90 days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, SECTION 2.1 if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or of Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries Subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; providedPROVIDED, howeverHOWEVER, that the Company shall not have postponed pursuant to this Section SECTION 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section SECTION 2.1 during the 24 12 month period ended on the date of the relevant request pursuant to Section SECTION 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section SECTION 2.1(i) to effect the registration of any Registrable SharesSecurities, the Company shall promptly give written notice of such proposed registration to all other Holders. Any such Holder may, within twenty (20) 20 days after receipt of such notice, request in writing that all of such Holder’s 's Registrable SharesSecurities, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission in accordance with SECTION 4 hereof as promptly as practicable, and shall use the Company’s 's reasonable best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best 's reasonable efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) 90 days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section SECTION 2 is suspended or, in the case of a Demand Registration, or postponed as permitted by Section SECTION 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.42.3. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf RegistrationRegistrations. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section SECTION 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) 90 days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.52.4. A registration pursuant to this Section SECTION 2 shall be on Form S-3 such appropriate registration form of the Commission as shall (i) be selected by the Company and be reasonably acceptable to the Selling Holders, and (ii) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section SECTION 2.1(i) or Section SECTION 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.62.5. If any registration pursuant to Section SECTION 2 involves an underwritten offering (whether on a “"firm”", “"best efforts” " or “"all reasonable efforts” " basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, Company shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent Agent or agents Agents for such agented offering; providedPROVIDED, howeverHOWEVER, that each Person so selected shall be reasonably acceptable to the CompanySelling Holders.
2.72.6. Whenever the Company shall effect a registration pursuant to this Section SECTION 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ ' Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Selling Holders holding at least a majority of the Registrable Securities (determined by the relative market value as of the date on which a timely demand is last received from Holder) proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ ' Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders; first for the account of the Holder, and second by all other Selling Holders.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Metro One Telecommunications Inc), Registration Rights Agreement (Metro One Telecommunications Inc)
Demand Registration. (i) If At any time during the five-year period following the Effective Time, one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time Requesting Purchasers may make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a "Demand Notice") for registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf "Demand Registration”)") of any Registrable Securities (such securities are herein referred to as "Demand Securities") held by such Requesting Purchasers. Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall The Demand Notice will specify the number of Registrable Demand Securities proposed to be registered, sold and will also specify the intended methods method of disposition thereof and that the request is for thereof. Once given, a Shelf Registration pursuant to this Section 2.2.
2.3Demand Notice will be irrevocable. Following receipt of a request for a Demand Registration or a Shelf RegistrationNotice from such Requesting Purchasers, the Company shall:
(i) File promptly will give written notice of the requested registration to all other Purchasers, and will thereafter file a registration statement with on any appropriate form which will cover (1) the Commission as promptly as practicableDemand Securities that the Company has been so requested to register by such Requesting Purchasers, and shall use (2) all other Demand Securities that the Company has been requested to registered by any other Purchasers by written request given to the Company within 15 days after the Company’s best efforts 's giving of written notice of the Requesting Purchasers' requested registration and (3) any other securities the Company determines to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offeringregister for its own account.
(ii) Use Unless the Company’s best efforts Requesting Purchasers shall consent in writing, no party (other than the Company or any other Purchaser) shall be permitted to keep the relevant registration statement Continuously Effective (x) if a offer securities under any such Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall not be obligated required to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary under this Section 2(a). A registration requested pursuant to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall this Section 2(a) will not be deemed to have been effected (iand it shall not count as one of the three Demand Registrations) unless a registration statement with respect the Registration Statement relating thereto has become effective under the Securities Act; provided, however, that if, after such Registration Statement has become effective, (ii) if after the offering of the Demand Securities pursuant to such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission SEC or other governmental agency or court for any reason court, such registration will be deemed not attributable to have been effected (and it shall not count as one of the Selling Holders and such interference is not thereafter eliminated, or three Demand Registrations).
(iii) if If the conditions Requesting Purchasers so elect, the offering of Demand Securities pursuant to closing specified such registration shall be in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason form of a failure on the part of the Selling Holdersan Underwritten Offering. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the managing underwriter or underwriters and manager or managers to administer of such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever advise the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder Participating Purchasers that in writing that, in its opinion, their view the inclusion number of more than one class of Registrable Demand Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders is sufficiently large so as to materially and adversely affect the success of such offering, the Company will include in such registration the aggregate number of Demand Securities which in the view of such managing underwriter or others) exceeds the amount which underwriters can be sold without any such material adverse effect; provided, however, that no Demand Securities may be excluded before all securities proposed to be sold by the Company and any other Person have been excluded. If any Demand Securities are excluded, such registration
(iv) Notwithstanding anything in such offering within a price range acceptable this Agreement to the Majority Selling Holderscontrary, securities shall be included the Company may postpone the filing, effectiveness, supplementing or amending of a Registration Statement (a "Demand Suspension Notice") for up to 90 days if, in such offering and the related registration, to the extent good faith judgment of the amount Company's Board of Directors, the registration or sale of the Demand Securities would adversely affect a material financing, acquisition, disposition of assets or stock, merger or other comparable transaction or would require the Company to make public disclosure of information the public disclosure of which can would have a material adverse effect upon the Company; provided further, however that the Company may not give more than one Demand Suspension Notice in any 12 month period. If the Company shall deliver any Demand Suspension Notice with respect to any Demand Registration, such Demand Registration shall not be sold within such price range, and on a pro rata basis among all Selling Holderscounted in determining whether the Company is required to file more than three Demand Registrations pursuant to this Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sonat Inc), Registration Rights Agreement (Zilkha Michael)
Demand Registration. (a) Subject to the provisions of Section 2.7, at any time and from time to time on or after the closing of the Transaction, each of Demanding Holders, may make a written demand for Registration of all or part of their Registrable Securities on (i) If one Form F-3 or more Holders that own an aggregate (ii) if not eligible to use Form F-3, Form F-1, which in the case of 51% either clause (i) or more (ii), may be a shelf Registration Statement filed pursuant to Rule 415 under the Securities Act, which written demand shall describe the amount and type of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there securities to be filed with included in such Registration and the Commission a registration statement meeting the requirements intended method(s) of the Securities Act distribution thereof (such written demand a “Demand Registration”). The Company shall, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number promptly following the Company’s receipt of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determinesand, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder mayevent, within twenty (20) days after of its receipt of such noticeDemand Registration), request notify, in writing that all other Holders of Registrable Securities of such demand, and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable SharesSecurities in a Registration pursuant to a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, or any portion thereof designated a “Requesting Holder”) shall so notify the Company, in writing, within ten (10) days after the receipt by the Holder of the notice from the Company. For the avoidance of doubt, to the extent a Requesting Holder also separately possesses Demand Registration rights pursuant to this Section 2.2, but is not the Holder who exercises such Demand Registration rights, the exercise by such Holder, be included in the registration.
2.2. On or after the date Requesting Holder of this Agreement each Substantial Holder that shall make a written request its rights pursuant to the foregoing sentence shall not count as the exercise by it of one of its Demand Registration rights. Upon receipt by the Company (of any such written notification from a Requesting Holder(s) to the “Initiating Substantial Holder”Company, subject to Section 2.2(d), such Requesting Holder(s) shall be entitled to have all or any number of such Initiating Substantial Holder’s their Registrable Securities included in a registration Registration pursuant to a Demand Registration and the Company shall effect, as soon thereafter as practicable, the Registration of all Registrable Securities requested by the Demanding Holders and Requesting Holders pursuant to such Demand Registration.
(b) Notwithstanding the provisions of Section 2.2(a) or any other part of this Agreement, a Registration pursuant to a Demand Registration shall not count as a Registration unless and until (i) the Registration Statement filed with the Commission in accordance with respect to a Registration pursuant to a Demand Registration has been declared effective by the Securities Act for Commission and (ii) the Company has complied with all of its obligations under this Agreement with respect thereto; provided, further, that if, after such Registration Statement has been declared effective, an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for in a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is subsequently interfered with by any stop order, injunction or other order or requirement injunction of the Commission Commission, federal or state court or any other governmental agency or court for any reason not attributable agency, the Registration Statement with respect to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 Registration shall be deemed not to have been satisfied declared effective, unless and until, (i) if a Demand Registrationsuch stop order or injunction is removed, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) daysrescinded or otherwise terminated, and (ii) if a Shelf Registrationmajority-in-interest of the Demanding Holders initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly notify the Company in writing, upon but in no event later than ten (10) days after the effective date removal, rescission or other termination of a Shelf Registration, provided no such stop order or similar orderinjunction, of such election; provided, further, that the Company shall not be obligated or proceedings for such an order, required to file another Registration Statement until the Registration Statement that has been previously filed with respect to a Registration pursuant to a Demand Registration by the same Demand Holder becomes effective or is thereafter entered or initiatedsubsequently terminated.
2.5. A registration pursuant (c) Subject to this the provisions of Section 2 shall be on Form S-3 2.2(d) and permit Section 2.7, if a majority-in-interest of the disposition Demanding Holders so advise the Company as part of their Demand Registration that the offering of the Registrable Securities in accordance with the intended method or methods of disposition specified pursuant to such Demand Registration shall be in the request pursuant form of an Underwritten Offering, then the right of such Demanding Holder or Requesting Holder (if any) to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain include its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 shall be conditioned upon such H▇▇▇▇▇’s participation in such Underwritten Offering and the information required by Rule 429 inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent provided herein. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this Section 2.2(c), subject to Section 3.3 and Article IV, shall enter into an underwriting agreement in customary form with the Securities Act) Company and the Underwriter or convert the Registration Statement on Form S-1 or other formUnderwriters, whichever is as applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under selected for such Underwritten Offering by the Securities Act and cause such Registration Statement (majority-in-interest of the Demanding Holders initiating the Demand Registration, which Underwriter or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial HolderUnderwriters, as the case may beapplicable, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable satisfactory to the Company.
2.7. Whenever the Company shall effect (d) If a registration pursuant Demand Registration is to this Section 2 in connection with be an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, Underwritten Offering and the managing Underwriter or Underwriters’ Representative or Agent , in good faith, advises each such Selling Holder the Company, the Demanding Holders and the Requesting Holders (if any) in writing that, in its opinion, the inclusion of more than one class dollar amount or number of Registrable Securities would adversely affect such offering, that the Demanding Holders holding at least and the Requesting Holders (if any) desire to sell, taken together with all other Registrable Securities or other equity securities that the Company desires to sell for its own account and the Registrable Securities, if any, as to which a majority Registration has been requested pursuant to separate written contractual piggyback registration rights held by any other stockholders of the Registrable Securities proposed Company who desire to be sold therein by themsell, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the maximum dollar amount which or maximum number of equity securities that can be sold in such Underwritten Offering without adversely affecting the proposed offering within a price range acceptable to price, the Majority Selling Holderstiming, securities the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall be included include in such offering Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding Holders and the related registrationRequesting Holders (if any) (pro rata based on the total amount of Registrable Securities held by each such Demanding Holder and Requesting Holder (if any) (such proportion is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the amount foregoing clause (i), the Registrable Securities or other equity securities that the Company desires to sell for its own account, which can be sold within without exceeding the Maximum Number of Securities; and (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Registrable Securities or other equity securities of other persons or entities that the Company is obligated to register in a Registration pursuant to separate written contractual arrangements with such price range, persons and on a pro rata basis among all Selling Holdersthat can be sold without exceeding the Maximum Number of Securities.
Appears in 1 contract
Sources: Registration Rights Agreement (Polestar Automotive Holding UK PLC)
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to Whenever the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3hereof, in order to fulfill its obligations under Section 2(ishall receive a written request therefor (a "Demand") from the Company shall file Holder or Holders of an aggregate of at least a Registration Statement on Form S-1 or other appropriate form and not later than five fifty-one (551 %) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration percent of the offer outstanding Warrants (based on the number of shares which may be purchased on exercise) and sale by the InvestorsRegistrable Shares, taken together, the Company shall promptly prepare and file with the Securities and Exchange Commission, not later than the (60th) day after the Company receives such request (the "Filing Deadline"), a Registration Statement on Form S-3 with respect registration statement under the Act covering the sale by such Holder or Holders of the number of Registrable Shares which are the subject of such request and shall use its best efforts to the cause such registration statement to promptly become effective and to remain effective for at least nine months or, if sooner, until all Registrable Securities covered Shares included in such registration have been sold by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(iHolder(s) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other formthereof. In addition, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing upon its receipt of such Registration Statement (or amendment). Notwithstanding the foregoingrequest, the Company shall use its commercially reasonable efforts give prompt written notice to meet all other Holders that such registration is to be effected. The Company shall also include in such registration statement such number of Registerable Shares which it has received written requests to register the requirements sale thereof by such other Holders within 20 days after the Company's written notice to such other Holders. If a registration statement filed pursuant to a Demand under this paragraph (b) becomes effective and remains effective for at least 90 days (whether or not consecutive) during the nine month period following the date of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall initial effectiveness, the Company shall not be obligated required to file any additional registration statements pursuant to this paragraph (b). The Company shall not be required to file a Registration State on registration statement under this paragraph (b) with respect to any form other than Form S-3 Demand received after January 31, 2002. Notwithstanding the foregoing provisions of this paragraph (b) to fulfill ist obligations under Section 2.2.
2.6. If any the contrary, if (i) after receiving a Demand the Company files a Company-initiated registration statement, prior to the Filing Deadline, for a registration in which the Holders are entitled to participate pursuant to Section 2 involves an underwritten offering the foregoing paragraph (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise1) (a) "Piggyback Registration Statement"), or an agented offering(ii) the Company complies with the foregoing paragraph (1) in connection with such Piggyback Registration Statement, and (iii) the Majority Selling HoldersPiggyback Registration Statement includes the registration of all the Registrable Shares requested to be registered by the Holders pursuant to such Demand, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever then the Company shall effect not be required to file a registration statement under this paragraph pursuant to such Demand. Any such Piggyback Registration Statement shall not constitute a registration statement filed pursuant to a Demand under this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: paragraph (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersb).
Appears in 1 contract
Demand Registration. (ia) If one Upon the written request of the Holder or more Holders that own an aggregate of 51% or more at least fifty percent (50%) of the Registrable Securities then outstanding (the “Demanding "Initiating Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii") the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and the registration under the Securities Act of such number of Shelf Registrations Registrable Securities as may are requested to be necessary to provide each and every Substantial Holder registered by the Initiating Holders, all in accordance with the right to request one Shelf Registration. For purposes following provisions of this Agreement, provided that the obligation of the preceding sentence, Company to effect such registration shall not be deemed to have been effected (i) unless a satisfied until the registration statement with respect thereto has become effective, (ii) if after such effective under the Securities Act and only so long as no stop order suspending the effectiveness of the registration statement has become effective, such registration or the related offerqualification or registration of any of the Registrable Securities for sale in any jurisdiction in which the Company shall be required pursuant to Section 5(d) to register or qualify such Registrable Securities shall not have been issued and no proceedings for that purpose shall have been initiated or threatened by the Securities and Exchange Commission (the "Commission") or any similar state agency. Within ten (10) days of the request for registration by the Initiating Holders, sale or distribution the Company shall give written notice of such request to all Holders, who shall be entitled, by written notice to the Company and subject to Section 4(a) hereof, to include shares of Registrable Securities thereunder is interfered with in any registration prepared by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 3(a). The Company shall not be obligated to effect more than two (2) demand registrations pursuant to this Section 3(a).
(b) In addition to the registration rights provided pursuant to Section 3(a) hereof, at any time and from time to time after six months following a firm commitment underwritten initial public offering of the Company's Common Stock (an "IPO"), upon the written request of the Initiating Holders, or at the request of any Holder which agrees to register Registrable Securities having a value of Five Million Dollars ($5,000,000) or more after an IPO, the Company shall be deemed obligated to effect the registration under the Securities Act on Form S-3 (if the Company is then eligible to use such registration form), or any similar short form registration adopted by the Commission for which the Company may then be eligible, of all or any portion of the Registrable Securities held by such Holder, all in accordance with the applicable provisions of this Agreement.
(c) Whenever the Company shall be requested by the Initiating Holders pursuant to Section 3(a) or by a Holder pursuant to Section 3(b) to effect the registration of Registrable Securities under the Securities Act, the Company shall, as provided in Section 5, effect the registration under the Securities Act of the Registrable Securities which the Company has been requested to register pursuant to Section 3(a) or (b), all to the extent requisite to permit the disposition by such Holder of the Registrable Securities so registered.
(d) In connection with requesting registration of Registrable Securities pursuant to Section 3(a) or (b), if the Initiating Holders or a Holder in the case of Section 3(b) advise the Company that they intend to publicly offer or distribute Registrable Securities to be covered by the registration statement pursuant to a firm commitment underwriting with an investment banking firm or firms selected by the Holders, the Company and any other person entitled to include shares of Common Stock in such registration statement shall enter into the same underwriting agreement with such underwriter or underwriters as shall such Holders, containing representations, warranties and agreements not substantially different from those customarily made by an issuer or selling shareholder in underwriting agreements with respect to secondary distributions.
(e) Neither the Company nor any of its security holders (other than the Holders) shall have been satisfied the right to include any securities of the Company in a registration requested pursuant to Section 3(a) or (b) unless (i) if a Demand Registration, upon such securities are of the earlier of (x) the date same class as of which all any of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which in such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, registration and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, offering is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 either (A) not being underwritten and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities requesting registration consent to such inclusion in writing or (B) a firm commitment underwriting and the managing underwriter has informed the Holders that inclusion of such securities will not adversely affect the price range or the probability of success of the offering and such securities are allocated as provided in Section 3(f) and sold on the same terms and conditions as apply to the Registrable Securities being sold. If any security holders of the Company (other than the Holders) register securities of the Company in a registration in accordance with the provisions of Section 3(a) or (b), such security holders shall pay their pro rata share of the Registration Expenses, as defined below, unless the Company has agreed to pay such expenses and, in the opinion of counsel to the Holders, such payment would not affect the ability of the Registrable Securities to be registered or qualified under the blue sky laws of any jurisdiction.
(f) If the Company or any of its security holders request the right to include equity securities in a registration statement filed pursuant to Section 3(a) or (b) and such securities are proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such a firm commitment underwritten offering and the related registration, and managing underwriters advise the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing Company that, in its their opinion, the amount total number of securities requested to be included in such offering (whether by Selling Holders or others) registration exceeds the amount number of securities which can be sold in such offering within a without adversely affecting the price range acceptable or probability of success of such offering, the securities to the Majority Selling Holders, securities shall be included in such offering and the related registrationshall include (i) first, to the extent all of the amount which can be sold within such price rangeRegistrable Securities being registered, and on a (ii) second, pro rata among the other holders of the Company's securities requesting inclusion in such registration on the basis among all Selling Holdersof the number of shares of securities requested to be registered by such holders and (iii) third, such other securities being offered by the Company.
Appears in 1 contract
Demand Registration. (ia) If At any time commencing one or more Holders that own an aggregate of 51% or more (1) year after the effective date of the Registrable Securities then outstanding Registration Statement relating to the Public Offering (the “Demanding Holders”"Registration Statement") and expiring five (5) years from the effective date of the Registration Statement, the Holders of the Representative's Warrants and/or Warrant Shares representing a "Majority" (as hereinafter defined) of the Representative's Warrants and/or Warrant Shares shall at any time make a have the right (which right is in addition to the registration rights under Section 9.2 hereof), exercisable by written request notice to the Company, to have the Company shall cause there to be filed prepare and file with the Securities and Exchange Commission (the "Commission"), on one occasion, a registration statement meeting and such other documents, including a prospectus, as may be necessary in the requirements opinion of both counsel for the Company and counsel for the Holders, in order to comply with the provisions of the Securities Act (Act, so as to permit a “Demand Registration”), public offering and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or sale by such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention Holders and any other Holders of the Secretary of Representative's Warrant and/or Warrant Shares who notify the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
Company within fifteen (ii) The Company shall be entitled to postpone for up to one hundred twenty (12015) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving after the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders mails notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i9.3(b) hereof (collectively, the "Requesting Holders") of their respective Warrant Shares for the earlier of (i) nine (9) consecutive months (subject to the following three sentences).
, or (iiiii) Whenever until the sale of all of the Warrant Shares requested to be registered by the Requesting Holders. If the Company shall have received a demand determines that any such registration statement that the Company has filed pursuant to Section 2.1(i) to effect the registration of any Registrable Sharespreceding sentence may no longer be used under applicable law unless it is supplemented or amended, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing notify the Holders that all of such Holder’s Registrable Shares, or any portion thereof designated have securities covered by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s its reasonable best efforts to have effect the registration declared effective under the Securities Act as soon as required amendment or supplement reasonably practicable, in each instance giving due regard expeditiously and thereafter shall promptly notify such Holders that such action has been taken. Any Holder that receives such a notice shall cease making any sales pursuant to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant such registration statement Continuously Effective (x) if a Demand Registration, until the Company notifies such Holder that the required supplement or amendment has been duly effected. The nine-month period provided for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period second preceding sentence shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreementdays, if any, entered into in connection with such that sales under the registration are statement may not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of made pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiatedpreceding sentence.
2.5. A (b) The Company covenants and agrees to give written notice of any registration pursuant to request under this Section 2 shall be on Form S-3 and permit the disposition 9.3 by any Holder or Holders representing a Majority of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant Representative's Warrants and/or Warrant Shares to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration registered Holders of the offer Representative's Warrants and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) Warrant Shares within ten (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (9010) days after from the date of filing the receipt of any such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2registration request.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Integrated Technology Usa Inc)
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more Following the five (5) month anniversary of the Registrable Securities then outstanding consummation of the Transactions (provided, that to the “Demanding Holders”extent any such Demand Notice is made prior to the six (6) month anniversary of the consummation of the Transactions, the Registration Statement shall at not be declared effective prior to such six (6) month anniversary), any time make Holder (other than any member of the ▇▇▇▇ Group), on behalf of itself and its Affiliates, shall have the option and right, exercisable by delivering a written request notice to the CompanyCompany substantially in the form attached hereto as Exhibit A (a “Demand Notice”), to require the Company shall cause there to, pursuant to be filed the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a registration statement meeting Registration Statement registering the requirements offering and sale of the Securities Act (a “Demand Registration”), number and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number type of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included terms and conditions specified in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”)Demand Notice, shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering which may include sales on a delayed or continuous basis pursuant to Rule 415 under the Securities Act pursuant to a Shelf Registration Statement (a “Shelf Demand Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to be registered, include in such Demand Registration and the intended methods of disposition thereof and thereof. Subject to the proviso at the end of this sentence, the Company shall not be required to effectuate a Demand Registration unless the dollar amount of the Registrable Securities of the Initiating Holder to be included therein is reasonably likely to result in gross sale proceeds (without regard to any underwriting discount or commission) of at least twenty million dollars ($20,000,000) based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice; provided, that the request foregoing restriction shall not apply to a Demand Registration requested by the Lanai Holder to the extent the Lanai Holder is for required to sell all or a portion of its Registrable Securities as a result of regulations to which the Lanai Holder or its Affiliate is subject or other applicable law.
(ii) Within five (5) Business Days (or if the Registration Statement will be a Shelf Registration Statement or relates to a bought or overnight Requested Underwritten Offering, within two (2) Business Days) after the receipt of the Demand Notice, the Company shall give written notice of such Demand Notice to all Holders and, within thirty (30) days after receipt of the Demand Notice, shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within five (5) Business Days (or if the Registration Statement will be a Shelf Registration Statement or relates to a bought or overnight Requested Underwritten Offering, within three (3) Business Days) after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2.22(a)(ii)). The Company shall use reasonable best efforts to cause such Registration Statement to become and remain effective (including using reasonable best efforts to file a Registration Statement including Registrable Securities included on any previous Registration Statement that ceases to be effective, which, for the avoidance of doubt shall not be considered an additional Demand Registration for any Holder) under the Securities Act until the date on which all Registrable Securities covered by such Registration Statement have been sold or have otherwise ceased to be Registrable Securities (the “Effectiveness Period”).
2.3. Following receipt of a request for (iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration requested by a Lanai Holder within ninety (90) days after the closing of any Underwritten Offering in which the Lanai Holders (together with their Affiliates) had the opportunity to include Registrable Securities with an aggregate value at least equal to $75,000,000, (B) more than one (1) Demand Registration by all Lanai Holders, collectively, within any one hundred eighty- (180-) day period or (C) a Shelf Registration, subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Company shall:
(i) File Registrable Securities held by the registration statement with the Commission as promptly as practicable, Initiating Holder shall have become and shall use the Company’s best efforts to have the registration declared remains effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard and is sufficient to the need to prepare current financial statements, conduct due diligence permit offers and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes sales of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution number and type of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of on the Commission or other governmental agency or court for any reason not attributable to the Selling Holders terms and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreementDemand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice; provided, if any, entered into that no such limitations shall apply with respect to any Demand Registration on a Shelf Registration Statement. Subject to the other limitations in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right the Kiko Holders and Lanai Holders shall be permitted to demand a be the Initiating Holder for an unlimited number of Demand Registrations (including any demands for registration pursuant of the offer and sale of Registrable Securities on Form S-3 (so long as the Company is eligible to this Section 2 use Form S-3)). No Demand Registration shall be deemed to have been satisfied (ioccurred for purposes of this Section 2(a)(iii) if a the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration, upon the earlier Registration in lieu thereof.
(iv) A Holder may withdraw all or any portion of (x) the date as of which all of the its Registrable Securities included therein shall have been disposed of pursuant to the in a Demand Registration Statement, and (y) the date as of which from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall have been Continuously Effective for a period effect any Demand Registration on such appropriate registration form of two hundred seventy the Commission (270A) days, as shall be selected by the Company and (iiB) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 as shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(iDemand Notice; provided, that (1) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by if the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may bebecomes, and thereafter is at the time of its receipt of a Demand Notice, eligible to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect (“S-3 Registration”) or such similar or successor form as may be appropriate, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an S-3 Registration, and (2) if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Company). If, at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the information required by Rule 429 under Company that it intends to effect an offering of all or part of the Registrable Securities Act) included on such Registration Statement, the Company will amend or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(or such amendmentvii) Without limiting Section 3, in connection with any Demand Registration pursuant to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendmentand in accordance with this Section 2(a). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts (A) promptly prepare and file or cause to meet be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary or advisable to register or qualify the requirements securities subject to such Demand Registration, including under the securities laws of Form S-3 such jurisdictions as the Holders shall reasonably request; provided, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for so long as listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities covered by a Registration Statement and such Registrable Securities remain outstanding Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and under sell such Registrable Securities pursuant to such Registration Statement; provided, that in no circumstances event shall the Company be obligated required to file a post-effective amendment to the Registration State Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on any form (but not yet sold under) such Registration Statement, other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority Affiliates of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative Holder or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent transferees of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersHolder.
Appears in 1 contract
Demand Registration. (i) If one Subject to the qualifications set forth in this Section 6(b), a Majority of the Holders shall have the right, at any time and from time to time, but not earlier than the Commencement Date or more Holders that own an aggregate later than the Expiration Date, to make 5 written request of 51% the Company to register under the Securities Act and the Regulations all or more any portion of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make Securities. Promptly after receipt of a written request for registration pursuant to the Companythis Section 6(b), the Company shall cause there to be filed notify all other Holders of such request and shall include in the registration effected hereunder such Registrable Securities as any other Holder shall request within 15 days after such notice. As soon as reasonably practicable after receipt of the original request, the Company shall file with the Commission SEC a registration statement meeting for the requirements registration of the Securities Act (a “Demand Registration”), Subject Stock for sale to the public and each Demanding Holder shall be entitled use its reasonable best efforts to have included therein (subject cause such registration statement to Section 2.7) all or become effective. The Company is obligated to effect only one such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made registration pursuant to this Section 2.1 if within six (6) months prior to 6(b). Notwithstanding the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1foregoing, if the Board determines, Company shall furnish to each of the Holders a certificate signed by the Chief Executive Officer of the Company stating that in its the good faith reasonable judgment (with the concurrence of the managing underwriter, if anyBoard of Directors of the Company it would be significantly disadvantageous to the Company and its shareholders for such a registration statement to be filed (other than as a result of the time and expense involved in the registration process), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any shall have the right to defer such filing for a period of its wholly owned subsidiaries and not more than 90 days after receipt of the Company promptly gives the Demanding Holders notice of request to effect such determinationa registration; provided, however, that the Company shall may not have postponed pursuant utilize this right more than once; and provided, further, that the Holder who made such written request to effect such registration, may, at any time in writing during the period of the deferral, withdraw the request for such registration and thereby preserve the right provided in this Section 2.1(ii6(b) to request such registration on a subsequent occasion. At any time prior to the filing effectiveness of any other Demand Registration a registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii6(b), the foregoing period shall be extended by the aggregate number Holders of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes a majority of the preceding sentenceSubject Shares covered thereby may instruct the Company to withdraw the registration statement. If following any such withdrawal, registration the Holders shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or reimburse the related offer, sale or distribution of Registrable Securities thereunder is interfered with Company for all out-of-pocket expenses incurred by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into it in connection with such registration are not satisfied or waivedthe registration, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities including expenses incurred in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets withdrawing the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investorsstatement, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, Holders shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever require the Company shall effect to file a registration statement under this Section 6(b) on a subsequent occasion. In connection with any offering of Subject Stock registered pursuant to this Section 2 in connection with an underwritten offering by one 6(b), the Company agrees not to effect any public sale or more Selling Holders distribution of Registrable Securities: (i) if such Selling Holders have requested Common Stock for the inclusion therein of more than one class of Registrable Securitiesseven-day period preceding, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion90-day period beginning on, the inclusion effective date of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make after the first anniversary of the date, the Holder makes a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered 's Shares, as the Demanding Holder shall report direct in writing; provided, however, that no request may be made pursuant to this Section 2.1 3.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 3.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 3.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities Shares to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i3.1(i). The Holder shall be entitled to no more than two Demand Registrations.
(ii) The Company shall be entitled to postpone for up to one hundred twenty ninety (12090) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.13.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders Holder notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii3.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 3.1 during the 24 twelve (12) month period ended on the date of the relevant request pursuant to Section 2.1(i3.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable SharesIn connection with an underwritten offering, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder mayand, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary approval of the Company, and other holders of Common Stock shall specify be given the number opportunity to include shares of Registrable Securities Common Stock in such offering ("Other Included Shares"); provided, however, if the Underwriters' Representative or Agent advises Holder in writing that, in its opinion, the amount of securities requested to be registeredincluded in such offering exceeds the amount which can be sold in such offering within a price range acceptable to the Holder, securities shall be included in such offering and the intended methods related registration, to the extent of disposition thereof the amount which can be sold within such price range, first for the account of the Holder, and that second by the request is for a Shelf Registration pursuant Company and other holders with respect to this Section 2.2the Other Included Shares.
2.33.2. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s 's best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s 's best efforts to keep the relevant registration statement Demand Registration Statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy ninety (27090) days or until such earlier date as of which all the Registrable Securities Shares under the Demand Registration statement Statement shall have been disposed of in the manner described in the Registration Statement, and (yor such earlier time as the Company would not have an) if a Shelf Registration, for three years. Notwithstanding obligation to include the foregoing, if for any reason Shares that have not been disposed of in the effectiveness of manner described in the Registration Statement in a registration pursuant to this Section 2 is suspended or, in 3 or Section 4 pursuant to the case definition of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement"Shares."
2.43.3. The Company shall be obligated to effect no more than three a total of two Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling HoldersRegistrations. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration Demand Registration pursuant to this Section 2 3 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities Shares included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2days.
2.63.4. If any registration pursuant to Section 2 3 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, Holder shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offeringan offering through agents; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Development Agreement (Nview Corp)
Demand Registration. All expenses (iother than underwriting discounts and commissions and ADS issuance and stock transfer taxes and fees) If one incurred in connection with registrations, filings or more Holders that own an aggregate qualifications pursuant to Section 2 for each Holder (which right may be assigned as provided in Section 13), including (without limitation) all registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to counsel for the Company, and the Company shall cause there to be filed reasonable fees and disbursements of one counsel for the selling Holders selected by them with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary approval of the Company, and which approval shall specify the number of Registrable Securities to not be registeredunreasonably withheld, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days borne by the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationCompany; provided, however, that the Company shall not have postponed pursuant be required to this Section 2.1(ii) the filing pay for any expenses of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration proceeding begun pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, if the Majority Selling Holders, or registration request is subsequently withdrawn at the Initiating Substantial Holder, as request of the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, registered (in which case all participating Holders shall decide which class bear such expenses pro rata based upon the number of Registrable Securities that were to be thereby registered in the withdrawn registration), unless the Holders of a majority of the Registrable Securities agree to forfeit their right to one demand registration pursuant to Section 2 (and for the avoidance of doubt, such agreement shall be included therein bind all Holders of the Registrable Securities); provided further, however, that if at the time of such withdrawal, the Holders (i) have learned of a material adverse change in such offering and the related registrationcondition, and business, or prospects of the other class shall be excluded; Company that was not known to the Holders at the time of their request and (ii) if have withdrawn the Underwriters’ Representative or Agent advises each request with reasonable promptness following disclosure by the Company of such Selling Holder in writing thatmaterial adverse change, in its opinion, then the amount Holders shall not be required to pay any of securities requested such expenses and shall not forfeit their rights pursuant to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersSection 2.
Appears in 1 contract
Sources: Investor Rights Agreement (BHR Winwood Investment Management LTD)
Demand Registration. (ia) If If, at any time after the conclusion of the Applicable Holdback Period with respect to the First Public Offering, the Company shall receive a written request from (1) both the CVC US Securityholder Representative (on behalf of one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding entities comprising CVC US or their Permitted Transferees) and the FP Securityholder Representative (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements on behalf of one or more of the Securities Act entities comprising FP or their Permitted Transferees) or (2) after the first anniversary of the First Public Offering, (A) either the CVC US Securityholder Representative (on behalf of one or more of the entities comprising CVC US or their Permitted Transferees) or the FP Securityholder Representative (on behalf of one or more of the entities comprising FP or their Permitted Transferees) or (B) the CVC Asia Pacific Securityholder Representative (on behalf of one or more of the CVC Asia Pacific Investors or their Permitted Transferees) (either of the foregoing, a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration under the Securities Act of any all or a portion of such Requesting Securityholder’s Registrable SharesSecurities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such proposed requested registration at least 15 days prior to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the anticipated filing date of this Agreement the registration statement relating to such Demand Registration to each Substantial Holder that shall make Non-Requesting Securityholder. Upon the Company’s giving notice of a written request to requested registration, the Company (will use its best efforts to effect, as expeditiously as possible, the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shallof:
(i) File the registration statement with Registrable Securities that the Commission as promptly as practicableCompany has been so requested to register by the Requesting Securityholders and, if they are not Requesting Securityholders, any Institutional Securityholder, CVC Asia Pacific Investors, Peninsula, Hynix, and shall use each of their respective Permitted Transferees participating in such registration, then held by the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicableRequesting Securityholders and such participating Institutional Securityholder, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.and
(ii) Use subject to the restrictions set forth in Section 5.02, all other Registrable Securities of the same class or series as that requested to be registered by the Requesting Securityholders that are held by a Securityholder not covered by Section 5.01(a)(i) entitled to request the Company to effect an Incidental Registration pursuant to Section 5.02 (all such Securityholders, together with the Requesting Securityholders, the “Holders”) have requested the Company to register by written request received by the Company within 15 days after the receipt by such Holders of such written notice given by the Company’s best efforts , all to keep the relevant registration statement Continuously Effective extent necessary to permit the disposition (xin accordance with the intended methods thereof as aforesaid) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under so to be registered, provided that the Company shall not be obligated to effect a Demand Registration statement shall have been disposed unless the gross aggregate proceeds expected to be received from the sale of the Common Units requested to be included in the manner described in the such Demand Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended equal or exceed $25,000,000 or, in the case of a Demand Shortform Registration, postponed as permitted by Section 2.1(ii), $5,000,000. In no event will the foregoing period shall Company be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated required to effect no more than three one Demand Registrations Registration hereunder within any six-month period and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration CVC Asia Pacific Securityholder Representative shall not be deemed entitled to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of make more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holderstwo requests for Demand Registrations.
Appears in 1 contract
Sources: Securityholders’ Agreement (MagnaChip Semiconductor LTD (United Kingdom))
Demand Registration. (ia) If one the Company shall receive from Coyote I or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make Coyote II a written request to register shares of Registrable Securities, which request may include an initial public offering of the Company's securities, the Company shall cause there to be filed with the Commission prepare and file a registration statement meeting the requirements of under the Securities Act (a “Demand Registration”)covering the shares so requested to be registered, and each Demanding Holder shall be entitled use its best efforts to have included therein (subject cause as expeditiously as possible such registration statement to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writingbecome effective; provided, however, that the shares of Common Stock for which registration has -------- -------- been requested shall constitute not less than 5% of all of the Coyote Shares (or any lesser percentage if the reasonably anticipated aggregate price to the public of such public offering, including, without limitation, an initial public offering, would exceed $10 million); provided, further, that if the amount of -------- -------- Common Stock for which registration has been requested constitutes less than 5% of all of the Coyote Shares and such amount represents all Registrable Shares, the foregoing limitation shall not apply. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within 90 days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in which the holders of Common Stock shall have been entitled to join pursuant to Sections 3 or 4 of this Agreement and in which there shall have been effectively registered all shares of Common Stock as to which registration shall have been requested. Except as set forth above, there shall be no limit to the number of registrations that may be requested pursuant to this Section 2.1 if within six (6) months prior 2; provided, -------- however, that the Company shall be obligated to register the date of such request a Demand Registration Statement Common Stock ------- pursuant to this Section 2.1 2 on no more than one occasion during any six-month period.
(b) Either of Coyote I or Coyote II shall have been declared effective by the Commission. Any request made right to select underwriters, if any, from time to time in connection with the sale of Registrable Securities pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i)2.
(iic) The Company shall be entitled to postpone include in any registration statement referred to in this Section 2, for up to one hundred twenty (120) days sale in accordance with the filing method of any Demand Registration statement otherwise required disposition specified by either of Coyote I or Coyote II, shares of Common Stock to be prepared sold by the Company for its own account, except as and filed to the extent that, in the opinion of the managing underwriter (if such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the marketing of the Coyote Shares to be sold. Except for registration statements on Form ▇-▇, ▇-▇ or any successor forms thereto, the Company will not file with the Commission any other registration statement under the Securities Act with respect to its Common Stock, whether for its own account or that of other shareholders, from the date of receipt of a notice from either of Coyote I or Coyote II pursuant to this Section 2.1, if 2 until the Board determines, in its good faith reasonable judgment (with the concurrence completion of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any period of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date distribution of the relevant request pursuant to Section 2.1(i)registration contemplated thereby.
(iiid) Whenever the The Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of may at its option elect that any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a requested registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective delayed for a period not in excess of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon 30 days from the effective date of such request, such right to delay a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed exercised by the Company with the Commission not more than once in a timely manner any twelve- month period (so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If that no such election by the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) may be made within twelve months of a previous election by the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five under this subsection (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendmentd). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2).
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Pacer International Inc)
Demand Registration. (ia) If one At any time after the closing date of the Public Offering, upon written notice from a Holder in the manner set forth in Section 12(h) hereof requesting that the Company effect the registration under the Securities Act of any or more Holders that own an aggregate of 51% or more all of the Registrable Securities then outstanding (held by such Holder, which notice shall specify the “Demanding Holders”) shall at any time make a written request to the Companyintended method or methods of disposition of such Registrable Securities, the Company shall cause there use its best efforts to be filed with effect, in the Commission a manner set forth in Section 5, the registration statement meeting the requirements of under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of for disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed intended method or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registrationstated in such request, the Company shallprovided that:
(i) File if, within 5 business days of receipt of a registration request pursuant to this Section 2(a), the registration statement Company is advised in writing (with a copy to the Commission as promptly as practicable, and shall use Holder requesting registration) by the Company’s best efforts to have managing underwriter of the registration declared effective under the Securities Act as soon as reasonably practicableproposed offering described below that, in each instance giving due regard such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect any immediately planned offering of securities by the Company that had been contemplated by the Company prior to receipt of notice requesting registration pursuant to this Section 2(a) (a "Transaction Blackout"), the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary Company shall not be required to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 2(a) until the earliest of (A) the abandonment of such offering, (C) the termination of any "hold back" period obtained by the underwriter(s) of such offering from any person in connection therewith or (D) 180 days after receipt by the Holder requesting registration of the managing underwriter's written opinion referred to above in this subsection (i));
(ii) if, while a registration request is suspended or, in the case of a Demand Registration, postponed as permitted by pending pursuant to this Section 2.1(ii2(a), the foregoing period shall be extended by Company has determined in good faith that (A) the aggregate number filing of days a registration statement would require the disclosure of such suspension material information that the Company has a bona fide business purpose for preserving as confidential or postponement.
2.4. The (B) the Company then is unable to comply with SEC requirements applicable to the requested registration, the Company shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (1) the date upon which such material information is otherwise disclosed to the public or ceases to be material or the Company is able to so comply with applicable SEC requirements, as the case may be, and (2) 45 days after the Company makes such good-faith determination, provided that the Company shall not be permitted to delay a requested registration in reliance on this clause (ii) more than once in any 24-month period; and
(iii) the Company shall not be obligated to effect no more than three Demand Registrations and file a registration statement relating to a registration request pursuant to this Section 2: (A) within a period of 12 months after the effective date of any other registration statement of the Company demanded pursuant to this Section 2(a); (B) if such registration request is for a number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes Registrable Securities less than 10% of the preceding sentencecommon equity of the Company then owned in the aggregated by the Holders; or (C) if Holders in the aggregate own less than 10% of the common equity of the Company.
(b) Notwithstanding any other provision of this Agreement to the contrary:
(i) a registration requested by a Holder pursuant to this Section 2, registration shall not be deemed to have been effected (iand, therefore, not requested for purposes of subsection 2(a), (A) unless a the registration statement with respect thereto filed in connection therewith has become effective, (iiB) if after it has become effective such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, not attributable less than 90% of the Registrable Securities requested to be registered cannot be completely distributed in accordance with the Selling Holders and such interference is not thereafter eliminated, plan of distribution set forth in the related registration statement or (iiiC) if the conditions to closing specified in the purchase agreement or underwriting agreement, if any, agreement entered into in connection with such registration are not satisfied or waived, (other than by reason of some act or omission by such Holder) or waived by the underwriters;
(ii) a failure on registration requested by a Holder pursuant to this Section 2 and later withdrawn at the part request of such Holder shall be deemed to have been effected (and, therefore, requested for purposes of Section 2(a)), whether withdrawn by the Selling Holders. If Holder prior to or after the effectiveness of such requested registration, except that if such request is withdrawn by a Holder prior to the filing of a registration statement with the SEC, such Holder can require the Company to disregard for purposes of Section 2(a)(iii) one such requested registration in any twelve month period; and
(iii) nothing herein shall have complied modify Holder's obligation to pay the Registration Expenses incurred in connection with its obligations under this Agreement, a right to demand a any withdrawn registration.
(c) In the event that any registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3involve, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 whole or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investorsin part, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, a Holder shall have the right to select designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter or underwriters and manager or managers to administer of such underwritten offering or and the placement agent or agents Company shall have the right to designate one underwriter reasonably satisfactory to the Holder as a co-manager of such underwritten offering.
(d) The Company shall have the right to cause the registration of additional securities for sale for the account of any person (including the Company) in any registration of Registrable Securities requested by a Holder pursuant to Section 2(a); provided that the Company shall not have the right to cause the registration of such agented offering; provided, however, that each Person so selected shall be reasonably acceptable additional securities if such Holder is advised in writing (with a copy to the Company.
2.7. Whenever ) by the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing managing underwriter that, in its such firm's good faith opinion, the inclusion registration of more than one class of Registrable Securities such additional securities would materially and adversely affect such offering, the Demanding Holders holding at least a majority offering and sale of the Registrable Securities proposed to be sold therein then contemplated by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersHolder.
Appears in 1 contract
Sources: Registration Rights Agreement (American States Financial Corp)
Demand Registration. (ia) If one or more Holders that own an Upon notice to the Company (x) from Shareholder(s) holding in the aggregate of 51% $15.0 million or more of the Registrable Securities then outstanding Restricted Shares (or Preferred Shares which are convertible into Restricted Shares) or (y) Class B Shareholder(s) holding in the aggregate $5.0 million or more of the Restricted Shares (or Preferred Shares which are convertible into Restricted Shares), such Shareholders (the “Demanding Holders”"Requesting Shareholders") shall at any time make have the right to request in writing a written registration of such shares that are (or which would be upon conversion) Restricted Shares. Such request (a "Demand Request") by the Requesting Shareholders shall (i) specify the number of Restricted Shares which each Requesting Shareholder intends to sell or dispose of, and (ii) state the Companyintended method or methods by which the Requesting Shareholder intends to sell or dispose of such Restricted Shares. Upon receipt of a Demand Request pursuant to this Section 2.1, the Company shall (as requested) (i) cause there to be filed, within the later of (x) ninety (90) days of the date of delivery to the Company of the Demand Request, or (y) one hundred eighty (180) days after the effectiveness of the most recently filed with registration statement by the Commission Company, a registration statement meeting covering such Restricted Shares which the requirements of Company has been so requested to register, providing for the registration under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered SharesRestricted Shares to the extent necessary to permit the disposition of such Restricted Shares so to be registered in accordance with the intended method of distribution specified in such Demand Request, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to may delay making such filing or taking such action by not more than one hundred twenty (120) days if the Company, prior to the time it would otherwise have been required to file such registration statement or take such action, determines in good faith that the filing of any Demand Registration such registration statement otherwise required or the taking of such action would require the disclosure of material, non-public information that, in the reasonable judgment of the Company, would be detrimental to the Company if so disclosed (and a delay would be likely to reduce the detrimental effect of such disclosure or obviate the need for such disclosure to be prepared made, or would otherwise adversely affect a financing, acquisition, disposition, merger or other material transaction), (ii) shall use its best efforts to have such registration statement declared effective by the Commission as soon as practicable thereafter, and (iii) refrain from filing any other registration statements with respect to any other securities of the Company until such date which is one hundred eighty (180) days following effectiveness of the registration statement filed in response to the Demand Request. Subject to any existing written agreement between the Company and Bear, ▇▇▇▇▇▇▇ & Co. Inc., the underwriter shall be selected by the Requesting Shareholders and shall be reasonably acceptable to the Company for any registration pursuant to this Section 2.1, if .
(b) In the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, event that the Company shall not have postponed pursuant is required to this Section 2.1(ii) the filing file a registration statement covering any Restricted Shares of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request Requesting Shareholder(s) pursuant to Section 2.1(i).
(iii2.1(a) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Sharesabove, the Company shall promptly give written notice of be permitted to include newly-issued securities ("Piggyback Securities") in such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness managing underwriter of a such proposed registration pursuant determines and advises in writing that the inclusion of all Piggyback Securities proposed to this Section 2 is suspended or, be included in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder underwritten public offering would interfere with the right to request one Shelf Registration. For purposes successful marketing of the preceding sentenceRequesting Shareholders' Restricted Shares, registration then the Company shall not be deemed permitted to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable include any Piggyback Securities thereunder is interfered with by any stop order, injunction or other order or requirement in excess of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreementamount, if any, entered into of Piggyback Securities which the managing underwriter of such underwritten offering shall reasonably and in connection with good faith agree in writing to include in such registration offering in excess of any amount to be registered for the Requesting Shareholder(s). The Piggyback Securities that are not satisfied or waived, other than by reason of a failure on excluded from the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of underwritten public offering pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 preceding sentence shall be on Form S-3 and permit withheld from the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed market by the Company with for a period, not to exceed 90 days from the Commission in a timely manner so as to remain eligible or become eligibleclosing of such underwritten public offering, as that the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company managing underwriter determines is not eligible at any time after the date hereof to use Form S-3, necessary in order to fulfill effect such underwritten public offering.
(c) The Company shall not be required to comply with more than four (4) Demand Requests, one (1) of which shall be reserved for IAMP (El Sitio) Investments Ltd. (and its obligations under Section 2(iaffiliates), one (1) of which shall be reserved for IMPSAT Corporation, one (1) of which shall be reserved for the Initial Shareholders, and one (1) of which shall be reserved for the Class B Shareholders holding a majority of the Class B Preferred Shares or Restricted Shares issued upon conversion of Class B Preferred Shares; provided, that the Class B Shareholders and the Class A Shareholders shall each have two (2) Demand Rights per annum commencing at such time as the Company shall file a Registration Statement becomes eligible to register its Common Shares on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the InvestorsF-3, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise)remains, or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever at any time the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securitiesis, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersso eligible.
Appears in 1 contract
Demand Registration. All expenses (iother than underwriting discounts and commissions and stock transfer taxes) If one incurred in connection with registrations, filings or more Holders that own an aggregate qualifications pursuant to Section 1.2 for each Holder (which right may be assigned as provided in Section 1.12), including (without limitation) all registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to counsel for the Company, and the Company shall cause there to be filed reasonable fees and disbursements of one counsel for the selling Holders selected by them with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary approval of the Company, and which approval shall specify the number of Registrable Securities to not be registeredunreasonably withheld, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days borne by the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationCompany; provided, however, that the Company shall not have postponed pursuant be required to this Section 2.1(ii) the filing pay for any expenses of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request registration proceeding begun pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect 1.2 if the registration of any Registrable Shares, request is subsequently withdrawn at the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, registered (in which case all participating Holders shall decide which class bear such expenses pro rata based upon the number of Registrable Securities that were to be thereby registered in the withdrawn registration), unless the Holders of a majority of the Registrable Securities agree to forfeit their right to one demand registration pursuant to Section 1.2 (and for the avoidance of doubt, such agreement shall be included therein bind all Holders of the Registrable Securities); provided further, however, that if at the time of such withdrawal, the Holders (i) have learned of a material adverse change in such offering and the related registrationcondition, and business, or prospects of the other class shall be excluded; Company that was not known to the Holders at the time of their request and (ii) if have withdrawn the Underwriters’ Representative or Agent advises each request with reasonable promptness following disclosure by the Company of such Selling Holder in writing thatmaterial adverse change, in its opinion, then the amount Holders shall not be required to pay any of securities requested such expenses and shall not forfeit their rights pursuant to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersSection 1.2.
Appears in 1 contract
Demand Registration. (i) If one At any time after the Warrants become ------------------- exercisable and so long as the Company continues to have a class of securities registered in accordance with Section 12 or more Holders that own an aggregate of 51% or more Section 15A of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the CompanyExchange Act, the holders of Restricted Securities may request the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of register for sale under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) any applicable state securities or "blue sky" laws all or such number any portion of such Demanding Holder’s Registered Sharesthe Restricted Stock that is then outstanding. From and after December 31, as 2007, the Demanding Holder holders of Restricted Stock shall report in writing; provided, however, that have no request may be made further rights to require the Company to register Restricted Stock pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission5.01. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled obligated to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed effect registration pursuant to ------------ this Section 2.15.01 no more than one time, if notwithstanding the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), fact that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to ------------ Restricted Stock may be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) held by more than one person. Whenever the Company shall have received a demand request to effect registration pursuant to this Section 2.1(i) to effect the registration of any Registrable Shares------- 5.01, the Company shall promptly give written notice to all other holders of ---- outstanding Restricted Securities of such proposed registration to all Holdersregistration. Any such Holder holder of Restricted Securities may, within twenty (20) 30 days after receipt of such notice, request in writing that all of such Holder’s Registrable Sharesholders' Restricted Stock, or any portion thereof designated by such Holderholder, be included in the registration.
2.2offering. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in In connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investorstherewith, the Company shall file a Registration Statement on Form S-3 registration statement covering the Restricted Stock sought to be registered by such holder with respect the Commission within 60 days of such request by such holder, unless such request is withdrawn. The managing underwriter in any such offering will be designated by the Seller and shall be reasonably satisfactory to the Registrable Securities covered by Company. Except as permitted in the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoingnext succeeding paragraph, the Company shall use agrees not to effect any public or private sale or distribution of its commercially reasonable efforts equity securities during the 10-day period prior to, and during the 30-day period beginning on, the effective date of the registration statement relating to meet the requirements such offering. The Company, and any other shareholder of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company entitled to participate in such registration, may participate in such registration (i) subject to the limitations set forth in the last paragraph of this Section 5.01 ------------ and (ii) only if the Company or such other shareholder agrees (x) to sell any shares being registered on their behalf on the same basis as provided in any underwriting agreement to which the Seller or Sellers are a party, (y) to timely complete and execute all questionnaires, powers of attorney, indemnities, hold-back agreements and other documents reasonably required under the terms of such underwriting agreement or by the Commission or any state securities regulatory body, and (z) to withdraw any shares from such registration which they may desire to withdraw only on terms and at a time agreed to by the Sellers which agreement will not be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6unreasonably withheld. If any the Company participates in such registration pursuant and registers a number of shares of Common Stock equal to Section 2 involves an underwritten or greater than the number being registered by the Sellers, then the Company may specify a co-managing underwriter for the offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be which is reasonably acceptable to the Company.
2.7Sellers and the managing underwriter selected by the Sellers. Whenever If the managing underwriter for the offering advises that the registration of the number of shares of Restricted Stock sought to be registered by the Sellers, together with the number of shares of Common Stock sought to be registered by the Company shall effect a registration pursuant and any other shareholder of the Company entitled to this Section 2 participate in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) such registration, if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing thatany, in its opinionopinion will have a material adverse impact on the offering (including without limitation causing the proceeds or the price per share the Sellers will derive from such registration to be reduced or causing the number of securities to be registered to be too large a number to be reasonably sold), the inclusion number of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed securities sought to be sold therein by them, shall decide which class of Registrable Securities registered shall be included therein reduced as follows:
(b) second, if the reduction provided for in such offering and clause (a) above does not reduce the related registrationnumber of shares of Common Stock sought to be registered to the Recommended Number, and then the other class remaining number of shares of Restricted Stock sought to be registered shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, reduced pro rata to the extent necessary to reduce the number of securities to be registered to the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersRecommended Number.
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at At any time make a after the date hereof, upon the written request request, from time to the Companytime, of any Lender, the Company shall cause there will use its best efforts to be filed with effect expeditiously the Commission a registration statement meeting the requirements of under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) of all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities Warrant Shares requested to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant be obligated to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed effect more than one registration pursuant to this Section 2.1 during at the 24 month period ended on request of each Lender (i.e., up to a total of three registrations).
(b) A request pursuant to this Section 2.1 shall state the number of Warrant Shares requested to be registered and the intended method of disposition thereof. If at the time of receipt of any request for registration pursuant to this Section 2.1 there shall be any public sale of Common Stock contemplated or in progress by the Company or, to the knowledge of the Company, by any other Person, then, upon receipt of such request, the Company agrees to notify the holder requesting such registration advising such holder that it may elect to withdraw such request and participate in such public offering pursuant to Section 2.2. Promptly upon receipt of any request pursuant to this Section 2.1 or, if the provisions of the preceding sentence shall be applicable to such request, promptly upon receipt of notice that the requesting holder wishes to maintain its request, the Company will send a notice to all other holders of Warrants and Warrant Shares, together with a copy of the request and, if the provisions of the preceding sentence shall be applicable to such request, notice of such public offering. Such other holders may elect to participate in the registration by notice to the Company given within 30 days following the date of the relevant Company's notice of request pursuant to Section 2.1(i)for registration.
(iiic) Whenever In addition, (i) if the Company shall have received a demand has issued and sold to the public, pursuant to Section 2.1(i) to effect a registration statement filed under the registration Securities Act, any of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, its securities in an underwritten offering within twenty ninety (2090) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after prior to the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following its receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 2.1 and the Company's managing underwriter has advised the Company in writing that the registration of Warrant Shares would materially adversely affect the market for the Common Stock, or (ii) if the Company (A) is suspended in possession of material non-public information involving the Company in connection with a material reorganization, merger, consolidation, acquisition of securities or assets or disposition of securities or assets, (B) determines on the advice of counsel that disclosure of such information would be required in a registration statement, and (C) determines in good faith that disclosure of such non-public information would have a material adverse effect on the Company and its stockholders, the Company shall have the right, which may not be exercised more than once in a twelve month period, to delay the requested registration of Warrant Shares for, in the case of clause (i) above, up to ninety (90) days after the effective date of the Company's earlier registration statement or such shorter period as may be acceptable to the managing underwriter, or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, clause (ii) if after such registration statement has become effectiveabove, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable up to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of on which such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2request was made.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Lets Talk Cellular & Wireless Inc)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at At any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within after six (6) months prior to following the date closing of the IPO, the Holders of at least two-thirds of the Registrable Securities may request in writing that the Company effect a Registration of all or part of the Registrable Securities held by them.
(b) Within twenty-one (21) days after receipt of any such request, the Company shall give written notice of such request to the other Holders and shall include in such Registration all Registrable Securities held by all such Holders who wish to participate in such demand Registration and provide the Company with written requests for inclusion therein within fourteen (14) days after the receipt of the Company’s notice. Thereupon, the Company shall effect the Registration of all Registrable Securities as to which it has received requests for Registration.
(c) Notwithstanding the foregoing, if the Company shall furnish to the Holders requesting a Demand Registration Statement registration statement pursuant to this Section 2.1 1 a certificate signed by the Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors, it would be seriously detrimental to the Company and its shareholders for such Registration to be effected and it is therefore essential to defer such Registration, the Company shall have been declared effective by the Commission. Any request made pursuant right to this Section 2.1 shall be addressed to defer the attention filing of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is a Registration Statement for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to period of not more than one hundred twenty (120) days after receipt of the filing request of any Demand Registration statement otherwise the Holders.
(d) The Company shall not be required to be prepared and filed pursuant to effect more than two (2) Registrations under this Section 2.11; however, the Company may be required to effect up to six (6) S-3 Registrations (not more than one within every six month period), or the equivalent, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), Company is then eligible to use that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i)form.
(iiie) Whenever If at least two-thirds (2/3) of the Company shall have received Holders of the Registrable Securities determine for any reason not to proceed with such Registration at any time before a demand pursuant to Section 2.1(i) to effect Registration Statement has been declared effective by the registration of any Registrable SharesSEC, the Company then such Holders shall promptly give written notice to Company of their decision, and such proposed registration to all Holders. Any such Holder mayRegistration Statement, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in if theretofore filed with the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”)SEC, shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 withdrawn with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2thereby.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (JTH Holding, Inc.)
Demand Registration. (i) If one At any time prior to the fifth anniversary hereof, [*] or more Holders that own an aggregate of 51% or more of its transferee shall have the Registrable Securities then outstanding right exercisable by written notice to the Company (the “Demanding Holders”) shall at any time make a written request "Demand Request"), to the Company, have the Company shall cause there to be filed prepare and file with the Securities and Exchange Commission a registration statement meeting (the requirements of the Securities Act (a “Demand Registration”"SEC"), and each Demanding Holder shall be entitled to have included therein on no more than one (subject to Section 2.78 below) all or occasion, a registration statement and such number of such Demanding Holder’s Registered Sharesother documents, including a prospectus, as the Demanding Holder shall report in writing; provided, however, that no request may be made necessary in the opinion of the Company counsel, to comply with the provisions of the Securities Act, so as to permit a public offering and sale of the Warrant Shares for nine (9) consecutive months by [*]. Notwithstanding anything else herein contained, the Company will have no obligation to prepare and file a registration statement under the Securities Act pursuant to this Section 2.1 6 other than on Form S-3 if within six (6) months prior available to the date of Company (or the equivalent thereto if such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commissionform is no longer generally available). Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty six (1206) days months the filing of any Demand Registration registration statement otherwise required to be prepared and filed by the Company pursuant to this Section 2.1, 6 if at the time the Company receives a request for registration the Board of Directors of the Company determines, in its good faith reasonable judgment (with business judgment, that the concurrence filing of such registration statement and the offering of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby Warrant Shares pursuant thereto would materially interfere with, or require premature disclosure of, with any financing, acquisition acquisition, corporate reorganization or reorganization involving other material transaction by the Company or any of its wholly owned subsidiaries Company, and the Company promptly gives the Demanding Holders [*] notice of such determination; provided, however, that determination and postponement. If the Company shall not have postponed pursuant to this Section 2.1(ii) so postpone the filing of any other Demand Registration statement otherwise required a registration statement, [*] shall have the right to be prepared and filed pursuant withdraw the request for registration by giving written notice to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty fifteen (2015) days after receipt of such noticethe Company's notice of postponement (and, request in writing that all the event of such Holder’s Registrable Shareswithdrawal, or any portion thereof designated by such Holder, request shall not be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make deemed a written request to the Company (the “Initiating Substantial Holder”), shall for registration which may be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment)6. Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts will have no obligation to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding prepare and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 registration statement under the Securities Act, if to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on do so would require a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to special audit of the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 's balance sheet and related financial statements in connection with an underwritten offering by one or more Selling Holders the preparation of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securitiesregistration statement, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing thateven if, in its opinionas a result, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority filing of the Registrable Securities proposed to registration statement would be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and delayed until after the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent completion of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersCompany's next regular audit.
Appears in 1 contract
Demand Registration. (a) If the Company shall receive from Initiating Holders a written request that the Company effect any registration with respect to all or at least 50% in the aggregate of the issued and outstanding Registrable Securities held by Initiating Holders, the Company shall:
(i) If one or more Holders that own an aggregate of 51% or more promptly give written notice of the Registrable Securities then outstanding (the “Demanding proposed registration to all other Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).and
(ii) The Company shall be entitled as soon as practicable use its reasonable best efforts to postpone for up register (including, without limitation, the execution of an undertaking to one hundred twenty (120file post-effective amendments and any other governmental requirements) days all Registrable Securities which the filing of any Demand Registration statement otherwise required Holders request to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationregistered; provided, however, that the Company shall not have postponed be obligated to file a registration statement pursuant to this Section 2.1(ii2:
(A) prior to September 31, 2007;
(B) within 120 days following the filing effective date of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an registered offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify ’s securities to the number general public in which the Holders of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed able effectively to register all Registrable Securities as to which registration shall have been requested;
(C) in any registration having an aggregate offering price (before deduction of in underwriting discounts and expenses of sale) of less than $1,000,000; or
(D) after the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a Company has effected one such registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have has been effected (i) unless a registration statement with respect thereto has become declared or ordered effective, (ii) if after such registration statement has become effective, such registration or and the related offer, sale or distribution full number of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of for which registration has been requested have been included in the Commission or other governmental agency or court for any reason not attributable registration. Subject to the Selling Holders and such interference is not thereafter eliminated, or foregoing clauses (iiiA) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied through (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the InvestorsD), the Company shall file a Registration Statement on Form S-3 with respect to registration statement covering the Registrable Securities covered so requested to be registered as soon as practicable, but in any event within ninety (90) days after receipt of the request or requests of the Initiating Holders and shall use reasonable best efforts to have such registration statement promptly declared effective by the Registration Statement on Form S-1 or other form filed pursuant Commission; provided, however, that if the Company shall furnish to Section 2(i) (such Holders a certificate signed by the Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors, with advice of counsel, it would be seriously detrimental to the Company and include in its stockholders for such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) registration statement to be declared effective no later filed within such ninety-day (90-day) period and it is therefore essential to defer the filing of such registration statement, the Company shall have an additional period of not more than ninety (90) days after the date expiration of filing the initial ninety-day (90-day) period within which to file such registration statement; provided, that during such time the Company may not file a registration statement for securities to be issued and sold for its own or anyone else’s account; and further provided, that during such deferment, the Initiating Holders may elect not to pursue such registration request, in which event, upon giving notice to the Company of such Registration Statement decision prior to the declaration of effectiveness of any such registration statement, the Initiating Holders shall not be deemed to have availed themselves of the demand registration right herein provided for.
(or amendment)b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request. Notwithstanding the foregoingIn such event, the Company shall use its commercially reasonable efforts include such information in the written notice referred to meet in Section 2(a)(i). In either such event, if so requested in writing by the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances Company, the Initiating Holders shall negotiate with an underwriter selected by the Company be obligated with regard to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer underwriting of such underwritten offering or the placement agent or agents for such agented offeringrequested registration; provided, however, that each Person so selected 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 twenty (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 2 shall be reasonably acceptable conditioned upon such Holder’s participation in such underwriting. The Company shall (together with all Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the Company.
2.7underwriter or underwriters selected for such underwriting. Whenever Notwithstanding any other provision of this Section 2, if the managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securitiesso advise all Holders, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion number of more than one class shares of Registrable Securities would adversely affect such offeringthat may be included in the registration and underwriting shall be allocated among all Holders thereof in proportion, as nearly as practicable, to the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class respective amounts of Registrable Securities shall be included therein in held by such offering and the related registrationHolders; provided, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing thathowever, in its opinion, the amount of that securities requested to be included in such offering (whether registration statement as a result of piggyback registration rights as well as any securities to be offered by Selling Holders or others) exceeds the amount which can Company, its officers and employees shall be sold in such offering within a price range acceptable excluded from the registration statement prior to the Majority Selling exclusion of any Registrable Securities held by the Holders. If any Holder disapproves of the terms of the underwriting, securities shall such Holder may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. If, by the withdrawal of such Registrable Securities, a greater number of Registrable Securities held by other Holders may be included in such offering and the related registration, registration (up to the extent limit imposed by the underwriters) 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 in determining the limitation as set forth above. Any Registrable Securities which are excluded from the underwriting by reason of the amount which can underwriter’s marketing limitation or withdrawn from such underwriting shall be sold within withdrawn from such price range, and on a pro rata basis among all Selling Holdersregistration.
Appears in 1 contract
Demand Registration. (ia) If one or more The Holders that own an aggregate of 51% or more not less than fifty percent (50%) of the Registrable Securities then outstanding (Shares shall have, as a group, the “Demanding Holders”) shall right, exercisable at any time make following the date that is eighteen (18) months following the date of this Agreement and from time to time thereafter, by written notice (a written “Demand Notice”) given to REIT, to request REIT forthwith to the Companyregister, the Company and REIT shall cause there to be filed register, under and in accordance with the Commission a registration statement meeting the requirements provisions of the Securities Act (and the terms of this Agreement, the resale of such number of Registrable Shares as may be specified in the Demand Notice The Holders, as a “Demand Registration”)group, and each Demanding Holder shall be entitled to have included therein an aggregate of two (subject to Section 2.72) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made Demand Registrations pursuant to this Section 2.1 if within six (6) months prior 2(a). Notwithstanding the foregoing, REIT shall not be required to the date of such request a Demand Registration Statement file pursuant to this Section 2.1 2(a) a Registration Statement covering Registrable Shares with anticipated gross proceeds of less than $25 million unless it covers all of the remaining Registrable Shares.
(b) In addition to the Demand Registration set forth in Section 2(a), WAS I shall have been declared effective the right, exercisable at any time following the date that is eighteen (18) months following the date of this Agreement, by Demand Notice given to REIT, to request REIT forthwith to register, and REIT shall register, under and in accordance with the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention provisions of the Secretary Securities Act and the terms of this Agreement, the Company, distribution by WAS I to current employees or former employees or directors of WAS I or its Affiliates or their respective heirs and shall specify the successors of such number of Registrable Securities Shares as may be specified in the Demand Notice. WAS I shall be entitled to be registered, the intended methods of disposition thereof and that the request is for a one (1) Demand Registration pursuant to this Section 2.1(i2(b).
(iic) The Company shall be entitled to postpone for up to one hundred twenty As promptly as reasonably practicable and in any event within sixty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (2060) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make on which REIT receives a written request to Demand Notice given by the Company (the “Initiating Substantial Holder”Holders or WAS I, as applicable, in accordance with Sections 2(a) or 2(b), if permitted under the Securities Act, REIT shall file with the SEC a Registration Statement and shall use its commercially reasonable efforts to cause any such Registration Statement to become and remain effective as promptly as reasonably practicable. Each such Registration Statement shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a on the appropriate form for the registration with the Commission and sale, in accordance with the Securities Act for an offering on intended method or methods of distribution, of the total number of Registrable Shares specified by the Holders in the Demand Notice, which may include a delayed or continuous basis “shelf” registration (a “Shelf Registration”) pursuant to Rule 415 under the Securities Act Act.
(a “Shelf Registration”). Any request made d) REIT shall use commercially reasonable efforts to keep effective each Registration Statement filed pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
2 (i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect for a registered public offering.
period of 180 days or (ii) Use the Company’s best efforts with respect to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until one such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if Statement that is a Shelf Registration, for three years. Notwithstanding a period of one (1) year; provided, further, that the foregoing, if for any reason the effectiveness period in each of a registration Sections 2(d)(i) and 2(d)(ii) may be extended pursuant to this Section 2 is suspended or, in and shall terminate upon such earlier time as all the case of a Demand Registration, postponed as permitted Registrable Shares covered by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension Registration Statement have been sold or postponementdistributed pursuant to such Registration Statement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with (e) Notwithstanding the right to request one Shelf Registration. For purposes of the preceding sentenceforegoing, (i) a registration shall not be deemed to have been effected (icount as a Demand Registration under Sections 2(a) unless a registration statement with respect thereto has become effective, (iior 2(b) if (A) after such registration statement Demand Registration has become effective, such registration or the related offer, sale or distribution of Registrable Securities Shares thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission SEC or other governmental agency or court for any reason not attributable to the Selling Holders initiating such Demand Registration and such interference is not thereafter eliminated, eliminated or (iiiB) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration Demand Registration are not satisfied or waived, other than by reason of a failure on by the part Holders initiating such Demand Registration, and as a result of any such circumstances described in (A) or (B), no Registrable Shares are sold pursuant to such registration; and (ii) no demand for registration may be made pursuant to this Section 2 within ninety (90) days of any registration of REIT Common Shares in which the Selling Holders. If the Company shall have complied with its obligations under this Agreement, Holders had a right to demand participate pursuant to this Agreement.
(f) REIT shall be entitled to postpone the filing of any Registration Statement otherwise required to be prepared and filed by REIT pursuant to this Section 2, or to suspend the use of any effective Registration Statement under this Section 2, for a reasonable period of time, but not in excess of sixty (60) days (a “Delay Period”), if:
(i) the Board of Directors of REIT, acting through a majority of those directors who have no direct or indirect beneficial or pecuniary interest in any Registrable Shares, determines in good faith that the registration and distribution of the Registrable Shares covered or to be covered by the Registration Statement would materially interfere with any proposed or pending material financing, acquisition, corporate reorganization or other material corporate development or transaction involving REIT or any of its subsidiaries, and REIT promptly gives the Holders written notice of such determination containing a reasonably detailed explanation of the reasons for such postponement or suspension and the anticipated period of delay; or
(ii) prior to the Registration Statement being declared effective by the SEC, REIT proposes to file a registration statement on Form S-11 under the Securities Act providing for a public offering of REIT Common Shares concurrent with the listing or, approval for listing, of the REIT Common Shares on a national securities exchange (such registration statement, including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration statement, the “Listing Registration Statement”), and REIT promptly gives the Holders written notice (including notifying each Holder of the identity of the managing underwriters of such initial public offering), within five (5) Business Days after such filing. Notwithstanding anything to the contrary contained herein, the aggregate number of days included in all Delay Periods during any consecutive twelve (12) month period shall not exceed a total of ninety (90) days, and the aggregate number of days included in all Delay Periods and Interruption Periods as a result of Section 5(c)(v) during any consecutive twelve (12) month period shall not exceed a total of one hundred and twenty (120) days. If REIT shall so postpone or suspend the filing of a Registration Statement, then the Holders of a majority of the Registrable Shares to be registered shall have the right to withdraw the request for registration by giving written notice to REIT within forty-five (45) days after receipt of the notice of postponement or suspension (and, in the event of such withdrawal, such request shall not be counted as a Demand Registration to which the Holders are entitled pursuant to this Section 2). The time period for which REIT is required to maintain the effectiveness of any Registration Statement pursuant to this Section 2 shall be deemed extended by the aggregate number of days of all Delay Periods, all Hold Back Periods and all Interruption Periods occurring during such Registration. REIT shall not be entitled to have been satisfied initiate a Delay Period unless it shall concurrently (i) if a Demand Registration, upon the earlier of prohibit sales by other security holders under registration statements (xother than Special Registration Statements) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which filed by REIT covering securities held by such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, other security holders and (ii) if in accordance with REIT’s policies from time to time in effect, forbid purchases and sales in the open market by senior executives of REIT, subject to permitted exceptions stated in a Shelf Registration, upon the effective date formal policy adopted by REIT’s board of directors. REIT may not postpone or suspend a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration filing pursuant to this Section 2 more than three (3) times in any twelve (12) month period, and a period of at least thirty (30) days shall elapse between the termination of any Delay Period, Hold Back Period or Interruption Period and the commencement of the immediately succeeding Delay Period.
(g) Each of the Holders (other than the Holders initiating the relevant Demand Registration under Section 2(a)) may include such Holder’s Registrable Shares under any such Demand Registration filed under Section 2(a) pursuant to this Section 2(g). REIT shall (i) as promptly as practicable but in no event later than ten (10) days after the receipt of a Demand Notice, give written notice thereof to all of the Holders (other than the Holders initiating such Demand Registration), which notice shall specify the number of Registrable Shares subject to the Demand Notice, the names and notice information of the Holders initiating such Demand Registration, the intended method of disposition of such Registrable Shares, if known by REIT, and any other information that at the time would be on Form S-3 appropriate to include in such notice and permit (ii) subject to Section 2(h), include in the disposition Registration Statement filed pursuant to such Demand Registration filed under Section 2(a) all of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed Shares requested by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, such Holders for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include inclusion in such Registration Statement on Form S-3 from whom REIT has received a written request for inclusion therein within ten (10) days of the information required receipt by Rule 429 under such Holders of such written notice referred to in clause (i) above. Each such request by such Holders shall specify the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) number of Registrable Shares proposed to be declared effective no later than ninety registered and such Holder shall send a copy of such request to the Holders initiating such Demand Registration. The failure of any Holder to respond within such ten (9010) days day-period referred to in clause (ii) above shall be deemed to be a waiver of such Holder’s rights under this Section 2(g) with respect to such Demand Registration. Any Holder may waive its rights under this Section 2(g) prior to the expiration of such ten (10) day-period by giving written notice to REIT, with a copy to the Holders initiating such Demand Registration. If a Holder sends REIT a written request for inclusion of part or all of such Holder’s Registrable Shares in a registration, such Holder shall not be entitled to withdraw or revoke such request without the prior written consent of REIT in its sole discretion unless, as a result of facts or circumstances arising after the date of filing of on which such request was made relating to REIT or to market conditions, such Holder reasonably determines that participation in such registration would have a material adverse effect on such Holder.
(h) Unless otherwise contractually required to do so, REIT shall not include any securities that are not Registrable Shares in any Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration filed pursuant to this Section 2 in connection with an underwritten offering by one or more Selling without the prior written consent of the Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed Shares outstanding, such consent not to be sold therein by themunreasonably withheld, shall decide which class of Registrable Securities shall be included therein conditioned or delayed. If the offering is an underwritten offering and the managing underwriter or underwriters participating in such offering and advise REIT that the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the total amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a (the “Holder Target Amount”) without materially delaying or jeopardizing the success of the offering (including the price range acceptable per share of the securities to be sold), then the number of Registrable Shares to be included in the offering described in this Section 2(h) may be reduced to the Majority Selling Holdersextent required to ensure the aggregate size of the offering does not exceed the Holder Target Amount, based on the following priorities: REIT shall include in such registration (i) first, the Registrable Shares of the Holders requested to be included therein (whether pursuant to Section 2(a), 2(b) or 2(g)), and (ii) second (to the extent the amount of such securities shall to be sold by such other Persons is less than the Holder Target Amount), the REIT Common Shares requested to be included in such offering and registration by one or more such Persons, pro rata among such Persons on the related registration, to the extent basis of the amount which can be sold within number of REIT Common Shares owned by each such price range, and on a pro rata basis among all Selling HoldersPerson.
Appears in 1 contract
Sources: Registration Rights Agreement (Wells Real Estate Investment Trust Inc)
Demand Registration. (i) If At any time on or after six (6) months after the Initial Public Offering if one or more Holders that who collectively own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the CompanyCompany (the "Demanding Holders"), the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of ----------- such Demanding Holder’s 's Registered Shares, as the Demanding Holder shall report request in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to ----------- the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).. --------------
(ii) The Company shall be entitled to postpone for up to one hundred twenty sixty (12060) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its ----------- good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, -------- ------- that the Company shall not have postponed pursuant to this Section 2.1(ii) the --------------- filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 twelve (12) month ----------- period ended on the date of the relevant request pursuant to Section 2.1(i).. --------------
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company -------------- shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s 's Registrable SharesSecurities, or any portion thereof designated by such Holder, be included in the registration.
2.2. On 2.2 At any time, or after the date of this Agreement each Substantial Holder that shall make a written request from time to time, when the Company is eligible to use Form S-2 or Form S-3 (the “Initiating Substantial Holder”), shall be entitled to have all or any similar successor form) in connection with a S-3 Registration, Holders of Registrable Securities amounting to not less than 1% of the shares of Common Stock then outstanding, may request that the Company file a S-3 Registration Statement covering the sale of the number of such Initiating Substantial Holder’s Registrable Securities included specified in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”)request. Any request made pursuant to this Section ------- 2.2 shall be addressed to the attention of the Secretary of the Company, and --- shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.. -----------
2.3. 2.3 Following receipt of a request for a Demand Registration or a Shelf an S- 3 Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s 's best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s 's best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred and seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf S-3 Registration, for so long as Company remains eligible to use a S-3 Registration, but not in excess of three (3) years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed --------- as permitted by Section 2.1(ii), the foregoing period shall be extended by the --------------- aggregate number of days of such suspension or postponement.
2.4. 2.4 The Company shall be obligated to effect no more than three one (1) Demand Registrations Registration, except that if following completion of a Demand Registration and such number the expiration of Shelf Registrations as may at least twelve (12) months from completion of the Initial Public Offering the Demanding Holders request a S-3 Registration and the Company is then ineligible to file a Form S-3 Registration Statement, the Holders will be necessary entitled to provide each and every Substantial Holder with require the right Company to request one Shelf Registrationeffect a second Demand Registration at Company's expense. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be --------- deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf S-3 Registration, upon the effective date of a Shelf S-3 Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiatedinitiated or, upon request of the Initiating Substantial Holder, such S-3 Registration is subsequently withdrawn.
2.5. 2.5 A registration pursuant to this Section 2 2.1 shall be on Form S-3 such ----------- appropriate registration form of the Commission as shall (i) be selected by the Company and be reasonably acceptable to the Majority Selling Holders, or by the Initiating Substantial Holder, as the case may be, and (ii) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.--------------
2.6. 2.6 If any registration pursuant to Section 2 involves an --------- underwritten offering (whether on a “"firm”", “"best efforts” " or “"all reasonable efforts” " basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall the choice of such underwriter to be reasonably acceptable subject to the Company's consent, not to be unreasonably withheld. No consent of Company shall be required to retain as underwriter any firm which acted as a managing underwriter of the Initial Public Offering.
2.7. 2.7 Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling --------- Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ ' Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, the securities shall which may be included in such offering and the related registration, shall be reduced to the extent of the such amount which can be sold within such price range, and shall be on a pro rata basis among all Selling HoldersHolders in accordance with the number of shares requested to be included in such registration pursuant to this Section 2. In --------- the event and to the extent the Underwriters' Representative or Agent advises the Company in writing that, in its opinion, shares in addition to the Registrable Securities may be included on such offering without adversely affecting the price which the Majority Selling Holders are likely to receive for their securities, the Company may permit the inclusion in such offering and such registration of shares of Common Stock owned by any one or more Founding Shareholders who request such registration (pro rata among them based on their proportionate ownership of shares of Common Stock). This provision is for the express benefit of the Founding Shareholders, may not be amended or modified without their consent, and may be enforced directly by them.
Appears in 1 contract
Demand Registration. (ia) If one Subject to Section 2.03(c) and Section 3.05, at any time and from time to time after the Closing Date, in the event that any Holder holds Registrable Securities that are not registered for resale on a delayed or more Holders continuous basis, any Holder that own an aggregate of 51% or more holds at least seven and one-half percent (7.5%) of the Registrable Securities then outstanding (the such Holder, as applicable, a “Demanding HoldersHolder”) shall at any time ), may make a written request to demand for Registration for all or part of such Registrable Securities on a Registration Statement, which written demand shall describe the Company, the Company shall cause there amount and type of securities to be filed with included in such Registration and the Commission a registration statement meeting the requirements intended method(s) of the Securities Act distribution thereof (such written demand a “Demand Registration”). The Company shall, promptly following the Company’s receipt of a Demand Registration, notify, in writing, all other Holders of Registrable Securities of such demand, and each Demanding Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”) shall so notify the Company, in writing, within five (5) days after the receipt by the Holder of the notice from the Company. For the avoidance of doubt, to the extent a Requesting Holder also separately possesses Demand Registration rights pursuant to this Section 2.02, but is not the Holder who exercises such Demand Registration rights, the exercise by such Requesting Holder of its rights pursuant to the foregoing sentence shall not count as the exercise by it of one of its Demand Registration rights. Upon receipt by the Company of any such written notification from a Requesting Holder(s) to the Company, subject to Section 2.03(b) below, such Requesting Holder(s) shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s their Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet file a Shelf as soon thereafter as practicable, but not more than thirty (30) days following the requirements Company’s receipt of Form S-3 the Demand Registration, for so long as any Registration of all Registrable Securities remain outstanding requested by the Demanding Holders and under no circumstances Requesting Holders pursuant to such Demand Registration. The Company shall the Company not be obligated to file effect (i) more than two (2) Registrations pursuant to a Demand Registration State on any form initiated by the ENNV Holders (other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration GSAM), (ii) more than two (2) Registrations pursuant to Section 2 involves an underwritten offering a Demand Registration initiated by GSAM, (whether on iii) more than two (2) Registrations pursuant to a “firm”Demand Registration initiated by the Legacy Fast Radius Holders or (iv) more than four (4) Registrations pursuant to a Demand Registration in the aggregate, “best efforts” or “all reasonable efforts” basis or otherwise)in each case, or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offeringin any 12-month period; provided, however, that each Person so selected a Registration shall not be reasonably acceptable to the Companycounted for such purposes unless a Registration Statement that may be available at such time has become effective.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (ECP Environmental Growth Opportunities Corp.)
Demand Registration. EXECUTION COPY
(i) If one or more Subject to SECTION 3.2, if the Holders that own an aggregate of 51at least 30% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the CompanyCompany (the "Demanding Holders"), the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7SECTION 5.6) all or such number of such Demanding Holder’s Registered Shares's Registrable Securities, as the Demanding Holder shall report request in writing; provided, however, that no request may be made pursuant to this Section 2.1 SECTION 5.1 if within six (6) months prior to the date of such request a Demand Registration Statement registration statement pursuant to this Section 2.1 SECTION 5.1 shall have been declared effective by the Commission. Such Demand Registration shall be effected by the Company by means of a shelf registration pursuant to Rule 415 of the Securities Act if so requested by the Demanding Holders. Any request made pursuant to this Section 2.1 SECTION 5.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(iSECTION 5.1(i). The Holders shall be entitled to no more than two (2) Demand Registrations.
(ii) The Company shall be entitled to postpone for up to one hundred twenty ninety (12090) days the filing of any Demand Registration registration statement otherwise required to be prepared and filed pursuant to this Section 2.1SECTION 5.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or of Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; providedPROVIDED, howeverHOWEVER, that the Company shall not have postponed pursuant to this Section 2.1(iiSECTION 5.1(ii) the filing of any other Demand Registration registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 SECTION 5.1 during the 24 twelve (12) month period ended on the date of the relevant request pursuant to Section 2.1(iSECTION 5.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(iSECTION 5.1(i) to effect the registration of any Registrable SharesSecurities, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s 's Registrable SharesSecurities, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request (iv) Subject to SECTION 5.6, in connection with an underwritten offering, the Company (the “Initiating Substantial Holder”)and, shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary approval of the Company, and other holders of Common Stock (other than Holders) shall specify be given the number opportunity to include shares of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.Common Stock in such offering ("Other Included Shares"). EXECUTION COPY
2.35.2. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best all reasonable efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best all reasonable efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if or such earlier time as the Company would not have any obligation to include the Registrable Securities that have not been disposed of in the manner described in the Registration Statement in a Shelf Registration, for three years. registration pursuant to SECTION 5 or SECTION 4 or the Registerable Securities are no longer Registerable Securities under the definition of "Registrable Securities." Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 SECTION 5 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(iiSECTION 5.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.45.3. The Company shall be obligated to effect no more than three a total of two (2) Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf RegistrationRegistrations. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration Demand Registration pursuant to this Section 2 SECTION 5 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) Statement or the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if or such earlier time as the Company would not have any obligation to include the Registrable Securities that have not been disposed of in the manner described in the Registration Statement in a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order registration pursuant to SECTION 5 or similar orderSECTION 4, or proceedings for such an orderthe Registerable Securities are no longer Registerable Securities under the definition of "Registrable Securities." Any Demand Registration Statement which, after filing with the Commission is thereafter entered or initiatedwithdrawn by the Holders, shall be deemed to have been effective in determining the number of Demand Registrations the Company is obligated to effect hereunder.
2.55.4. A registration pursuant to this Section 2 SECTION 5 shall be on Form S-3 such appropriate registration form of the Commission as shall (i) be selected by the Company and be reasonably acceptable to the Demanding Holders and (ii) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendmentSECTION 5.1(i). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.65.5. If any registration pursuant to Section 2 SECTION 5 involves an underwritten offering (whether on a “"firm”, “," "best efforts” " or “"all reasonable efforts” " basis or otherwise), or an agented offering, the Majority Selling Demanding Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; providedPROVIDED, howeverHOWEVER, that each Person so selected shall be reasonably acceptable to the Company.
2.75.6. Whenever the Company shall effect a registration pursuant to this Section 2 SECTION 5 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ ' Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Demanding Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders; first for the account of the Demanding Holders, second by all other Selling Holders and third by the Company and other holders with respect to the Other Included Shares.
Appears in 1 contract
Sources: Registration Rights Agreement (National Record Mart Inc /De/)
Demand Registration. (ia) If one or more Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders that own an aggregate of 51% or more a majority of the Registrable Securities then outstanding (the “Demanding "Initiating Holders”") shall at any time make a written request to the Company, that the Company shall cause there to be filed with the Commission file a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File covering the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed then outstanding (or a proportionate lesser percent of the Registrable Securities if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $1,000,000), then the Company shall, within 20 days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be sold therein by them, registered. Any request for registration pursuant to this Section 2.2(a) shall decide which class be made in writing (a "Registration Notice") and shall set forth the number of Registrable Securities requested to be so registered and the applicable Holder's or Holders' preferred method of distribution of such Registrable Securities. Upon receipt by the Company of a Registration Notice, the Company shall promptly notify (a "Company Notice") each other Holder, if any, in writing of such request for registration and, if any such Holder responds within 15 days after the effective date of such Company Notice, the Company shall, subject to this Section 2.2, include all Registrable Securities requested by any such Holder to be registered. Failure of any Holder to respond to the Company Notice within the 15-day period specified above shall be deemed an election by such Holder not to have any of his, her or its Registrable Securities included therein in such offering registration statement.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the related registrationCompany shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration 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 enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company, subject to the limitations set forth in Section 2.15. Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities electing to participate in the registration under this Section 2.2, and the other class number of shares that may be included in the underwriting shall be excludedallocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such electing Holders (including the Initiating Holders). If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter, delivered at least 10 business days prior to the effective date of the registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(1) with respect to any Registration Notice delivered to the Company prior to 120 days following the date of this Agreement;
(2) after the Company has effected a total of two registrations pursuant to Section 2.2 or Section 2.4, or any combination thereof, and each such registration has been declared or ordered effective;
(3) if within 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company's intention to make a public offering within 90 days; and provided that the Company may give only one such notice under this Section 2.2(c)(iii) in any 12-month period;
(ii4) if the Underwriters’ Representative Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2, a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, (A) it would be significantly disadvantageous to the Company and its stockholders for such registration statement to be effected at such time, then the Company shall have the right to defer such filing for a period of not more than 90 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any 12-month period or Agent advises each (B) that the Company (1) has reached the "probable" state on an acquisition with respect to which the Company reasonably believes it is required by the Securities Act to include in a registration statement information and financial statements concerning such Selling Holder in writing thatacquisition or (2) has completed such an acquisition but has not yet filed the financial statements required by Item 7 of Form 8-K under the Exchange Act, then the Company shall have the right to defer such filing until 30 days after the financial statements required by Item 7 of Form 8-K are filed with the SEC with respect to either such acquisition. In the event of a postponement pursuant to clause (A) above, the Company shall file such registration statement as soon as practicable after it shall determine, in its opinionreasonable business judgment, that such registration and offering will not be significantly disadvantageous to the amount Company and its stockholders but in any event within 90 days after the initial date of securities such postponement. If the Company shall postpone the filing of any registration statement, Holders holding in the aggregate 50% or more of the number of Registrable Securities requested to be included in such offering (whether registration statement shall have the right to withdraw their requests for such registration by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable giving notice to the Majority Selling Holders, securities Company within 15 days of the notice of postponement. Such withdrawal request shall be deemed to apply to all Holders who had requested to have Registrable Securities included in such offering and registration statement. In the related registrationevent that any Holders withdraw their request in the foregoing manner, such request shall not be counted for purposes of determining the number of registrations to which the extent Holders are entitled pursuant to this Section 2.2;
(5) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(6) for a period of 30 days after the amount which can be sold within such price range, and on a pro rata basis among all Selling Holderseffectiveness of any other registration statement filed by the Company.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Pentastar Communications Inc)
Demand Registration. (i) If one 2.1 Registration Other Than on Form F-3 or more Holders that own an aggregate Form S-3. Subject to the terms of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall this Agreement, at any time make or from time to time after the first (1st) year anniversary of the closing of the Series D SPA, any Holder(s) that individually or jointly hold at least twenty-five percent (25%) of the then outstanding Registrable Securities of the Company may request in writing that the Company effect a written request Registration on NASDAQ Stock Exchange, New York Stock Exchange, Hong Kong Stock Exchange, Shenzhen Stock Exchange, Shanghai Stock Exchange or such other internationally recognized stock exchange that is reasonably acceptable to the Companysuch requesting Holder. Upon receipt of such a request, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7x) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such the proposed registration Registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, Holders and (y) if a Shelf Registrationas soon as practicable, for three years. Notwithstanding use its reasonable best efforts to cause the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, Registrable Securities specified in the case request, together with any Registrable Securities of a Demand Registrationany Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, postponed to be Registered and/or qualified for sale and distribution in such jurisdiction as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4Initiating Holder may request. The Company shall be obligated to effect no more than three Demand (3) Registrations pursuant to this Section 2.1 that have been declared and such number ordered effective; provided that if the sale of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes all of the preceding sentenceRegistrable Securities sought to be included pursuant to this Section 2.1 is not consummated for any reason other than due to the action or inaction of the Holders including Registrable Securities in such Registration, registration such Registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement constitute one of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration Registration rights granted pursuant to this Section 2 shall be deemed 2.1. -8-
2.2 Registration on Form F-3 or Form S-3. Subject to have been satisfied the terms of this Agreement, if the Company qualifies for registration on Form F-3 or Form S-3 (i) if or any comparable form for Registration in a Demand Registrationjurisdiction other than the United States), upon any Holder may request the earlier of Company to file, in any jurisdiction in which the Company has had a registered underwritten public offering, a Registration Statement on Form F-3 or Form S-3 (x) or any comparable form for Registration in a jurisdiction other than the date as of which United States), including without limitation any registration statement filed under the Securities Act providing for the registration of, and the sale on a continuous or a delayed basis by the Holders of, all of the Registrable Securities included therein shall have been disposed of pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the Commission. Upon receipt of such a request, the Company shall (i) promptly give written notice of the proposed Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, to all other Holders and (ii) if a Shelf Registrationas soon as practicable, upon use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and qualified for sale and distribution in such jurisdiction. The Company shall be obligated to effect no more than two (2) Registrations that have been declared and ordered effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration within any twelve (12)-month period pursuant to this Section 2 shall be on Form S-3 and permit 2.2; provided that if the disposition sale of all of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required sought to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration included pursuant to this Section 2 in connection with an underwritten offering by one 2.2 is not consummated for any reason other than due to the action or more Selling inaction of the Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of including Registrable Securities would adversely affect in such offeringRegistration, the Demanding Holders holding at least a majority such Registration shall not be deemed to constitute one of the Registrable Securities proposed Registration rights granted pursuant to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersthis Section 2.2.
Appears in 1 contract
Sources: Shareholder Agreement
Demand Registration. (ia) If one or more Any person designated by the Holders that own an aggregate of 51at least 50% or more of the Registrable Securities then outstanding Shares shall have the right during the Registration Period, by written notice (the “Demanding Holders”"Demand Notice") shall at any time make a written request given to the Company, to request the Company shall cause there to be filed register under and in accordance with the Commission a registration statement meeting the requirements provisions of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention any portion of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that Shares designated by such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationHolders; provided, however, that the Company shall not have postponed aggregate number of Registrable Shares requested to be registered pursuant to this Section 2.1(ii) any Demand Notice shall be at least the filing Minimum Number. As of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of this Agreement, until such time as the relevant request pursuant to Section 2.1(i).
(iii) Whenever Holders of at least 50% of the Registrable Shares shall have notified the Company of another designee, the person designated to give the Demand Notice shall have received a demand pursuant to Section 2.1(i) to effect the registration be Stew▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇n receipt of any Registrable Sharessuch Demand Notice, the Company shall promptly give written notice notify all other Holders of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after the receipt of such noticeDemand Notice and allow them the opportunity, request in writing that all subject to the other terms of such Holder’s this Section 2, to include Registrable Shares, or any portion thereof designated Shares held by such Holder, be included them in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a proposed registration by submitting their own written request notice to the Company requesting inclusion of a specified number of such Holders' Registrable Shares (the “Initiating Substantial Holder”"Inclusion Notice"), . The Holders as a group shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made four Demand Registrations pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a 2; if any such Demand Registration does not become effective or a Shelf Registration, is not maintained for the Company shall:
period (iwhether or not continuous) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted required by Section 2.1(ii2(c), the foregoing period shall affected Holders will be extended by entitled to an additional Demand Registration pursuant hereto. It is agreed that the aggregate number registration of days of such suspension or postponement.
2.4. The Company shall be obligated Registrable Shares pursuant to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration an Inclusion Notice shall not be deemed to have been effected be a Demand Registration. Nothing in this Section 2(a) shall limit any rights pursuant to Section 3 hereof.
(ib) unless a registration statement with respect thereto has become effectiveSubject to the other terms of this Section 2, (ii) if after such registration statement has become effectivethe Company, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement within 45 days of the Commission or other governmental agency or court for any reason not attributable to date on which the Selling Company receives a Demand Notice given by Holders in accordance with Section 2(a) hereof, shall file with the SEC, and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreementthereafter use commercially reasonable efforts to cause to be declared effective, a right to demand a Registration Statement on the appropriate form for the registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registrationand sale, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition distribution, of the total number of Registrable Shares specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.in
Appears in 1 contract
Sources: Registration Rights Agreement (Health Care & Retirement Corp / De)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at At any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder the Majority Investor Holders may request in writing that the Corporation effect the registration under the Securities Act of any or all of the Registrable Securities held by the Investor Holders, which notice shall make a written request to specify the Company (the “Initiating Substantial Holder”), shall be entitled to have all intended method or any number methods of disposition of such Initiating Substantial Holder’s Registrable Securities. Except as otherwise provided herein, the Corporation shall prepare and (within 90 days after such request has been given) file with the Securities and Exchange Commission a registration statement with respect to (x) all Registrable Securities included in a such request and (y) all Registrable Securities included in any request delivered by the Requesting Holders pursuant to Section 2.01(g), and thereafter use its reasonable best efforts to effect the registration with under the Commission Securities Act and applicable state securities laws of such Registrable Securities for disposition in accordance with the Securities Act for an offering on intended method or methods of disposition stated in such request (which requested method of disposition may be a delayed or continuous basis pursuant to Rule 415 under Offering); provided that the Securities Act Corporation shall not be obligated to (i) effect a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to registration for a Rule 415 Offering unless the attention of the Secretary of the Company, and shall specify the number aggregate amount of Registrable Securities to be registered, registered exceeds $10 million and (ii) send officers of the intended methods of disposition thereof and that the request is for a Shelf Registration Corporation to attend any “road show” presentations in connection with any registration pursuant to this Section 2.22.01(a) unless the aggregate amount of Registrable Securities to be registered exceeds $50 million; provided further that if the Corporation furnishes to the Requesting Holders a certified resolution of the Board stating that in the Board’s good faith judgment it would (because of the existence of, or in anticipation of, any acquisition or other material event or transaction the public disclosure of which at the time would be materially prejudicial to the Corporation) be significantly disadvantageous (a “Disadvantageous Condition”) to the Corporation for such a registration statement to be maintained effective, or to be filed and become effective, and setting forth in reasonable detail the general reasons for such judgment, the Corporation shall be entitled to cause such registration statement to be withdrawn and the effectiveness of such registration statement terminated, or, in the event no registration statement has yet been filed, shall be entitled not to file any such registration statement, until such Disadvantageous Condition no longer exists (written notice of which the Corporation shall promptly deliver to each Requesting Holder). Upon receipt of any certification of a Disadvantageous Condition, such Requesting Holders shall forthwith discontinue use of the prospectus contained in such registration statement and, if so directed by the Corporation, such Requesting Holders shall deliver to the Corporation all copies, other than permanent file copies, of the prospectus covering such Registrable Securities current at the time of receipt of such notice. Neither the filing nor the effectiveness of any such registration statement may be delayed for a period in excess of 60 days due to the occurrence of any particular Disadvantageous Condition and the Corporation may exercise its delay rights on only one occasion in connection with any registration request under Section 2.01 or in any one-year period. If requested by the Initial Requesting Holders, the Corporation shall, if any registration statement shall have been withdrawn, at such time as it is possible or, if earlier, at the end of the 90-day period following such withdrawal, file a new registration statement covering the Registrable Securities that were covered by such withdrawn registration and maintain the effectiveness thereof for such time as is required under this Agreement.
2.3. Following receipt (b) The Investor Holders may collectively exercise their rights under this Section 2.01 (x) on an unlimited number of occasions with respect to registration statements on Forms S-2 or S-3 (or any successors thereto) and (y) on not more than three occasions with respect to registration statements on Form S-1 (or any successor thereto).
(c) The Holders shall not have the right to require the filing of a registration statement pursuant to this Section 2.01 within six months following the registration and sale of Registrable Securities effected pursuant to a prior exercise of the registration rights provided for in this Section 2.01.
(d) The Initial Requesting Holders may, at any time prior to the effective date of the registration statement relating to any requested registration, revoke such request (which request will then not count as the exercise of a request for purposes of Section 2.01(a)), without liability to any Requesting Holder, by providing a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard written notice to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offeringCorporation revoking such request.
(iie) Use Notwithstanding any other provision of this Agreement to the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registrationcontrary, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration 2.01 shall not be deemed to have been effected (and, therefore, rights of a Requesting Holder shall be deemed not to have been exercised for purposes of paragraphs (a) or (b) above) (i) unless a registration statement with respect thereto it has become effective, (ii) if after it has become effective such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Securities and Exchange Commission or other governmental agency or court for any reason other than a misrepresentation or an omission by such Requesting Holder and, as a result thereof, the Registrable Securities requested to be registered cannot attributable to be completely distributed in accordance with the Selling Holders and such interference is not thereafter eliminated, plan of distribution set forth in the related registration statement or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement, if any, agreement entered into in connection with such registration are not satisfied or waived, waived other than solely by reason of a failure on some act or omission by such Requesting Holder.
(f) In the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a event that any registration pursuant to this Section 2 2.01 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3involve, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 whole or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investorsin part, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by themregistered shall select the lead underwriter, as well as counsel for the Holders, with respect to such registration.
(g) Upon receipt of a written request from the Initial Requesting Holders pursuant to the first sentence of Section 2.01(a), the Corporation shall decide which class promptly give written notice of such requested registration to all other Holders of Registrable Securities shall Securities. Each other Holder may, by written notice to the Corporation to be included therein delivered within 15 days of the delivery of the Corporation’s notice, request the inclusion in such offering and registration of any Registrable Securities held by such other Holder. The Corporation shall promptly after the related registration, and expiration of such 15-day period notify each Requesting Holder of (i) the identity of the other class shall be excluded; Requesting Holders and (ii) the number of Registrable Securities requested to be included therein by each Requesting Holder.
(h) Subject to Section 2.10, the Corporation shall have the right to cause the registration of additional equity securities for sale for the account of any Person that is not a Holder (including the Corporation and any directors, officers or employees of the Corporation) in any registration of Registrable Securities requested by the Requesting Holders; provided that if the Underwriters’ Representative or Agent advises each such Selling Holder Requesting Holders are advised in writing (with a copy to the Corporation) by a nationally recognized investment banking firm selected pursuant to paragraph (f) above that, in its opinionsuch firm’s good faith view, all or a part of such additional equity securities cannot be sold and the inclusion of such additional equity securities or part thereof in such registration would be likely to have an adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities then contemplated by any Requesting Holder, the amount registration of such additional equity securities or part thereof shall not be permitted (unless such registration is the initial Public Offering and such other Persons (the “Institutional Holders”) are exercising their registration rights under the Institutional Registration Rights Agreement, in which case the number of equity securities to be included in such registration statement shall be allocated pro rata among all of the Requesting Holders and Institutional Holders pro rata on the basis of the relative number of Registrable Securities and other equity securities of the Corporation then held by each such Requesting Holder and each such Institutional Holder (with any number in excess of a Requesting Holder’s or Institutional Holder’s request reallocated among the remaining Requesting Holders and Institutional Holders in a like manner)). In the event that the number of Registrable Securities requested to be included in such offering (whether a registration statement by Selling the Requesting Holders or others) exceeds the amount which number which, in the good faith view of such investment banking firm, can be sold without adversely affecting the price, timing, distribution or sale of securities in such offering within a price range acceptable to the Majority Selling Holdersoffering, securities the number shall be included in such offering and the related registration, to the extent allocated pro rata among all of the amount which can be sold within Requesting Holders on the basis of the relative number of Registrable Securities then held by each such price range, and on Requesting Holder (with any number in excess of a pro rata basis Requesting Holder’s request reallocated among all Selling Holdersthe remaining Requesting Holders in a like manner).
Appears in 1 contract
Sources: Registration Rights Agreement (Aventine Renewable Energy Holdings Inc)
Demand Registration. (ia) If Upon the written request of one or more Holders that own an aggregate of 51% or more of the DLJ Entities or, with the consent of DLJ Merchant Banking, Inc., their Permitted Transferees (each such DLJ Entity and Permitted Transferee, a "Selling Shareholder" and collectively, the "Selling Shareholders") requesting that the Company effect the registration under the Securities Act of such Selling Shareholder's Registrable Securities then outstanding (Stock, and specifying the “Demanding Holders”) shall at any time make a written request to the Companyintended method of disposition thereof, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall will promptly give written notice of such proposed requested registration (a "Demand Registration") to all Holders. Any such Holder mayShareholders, within twenty (20) days after receipt of such noticeand thereupon will use its best efforts to effect, request in writing that all of such Holder’s Registrable Sharesas expeditiously as possible, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shallof:
(i) File the registration statement with Registrable Stock that the Commission as promptly as practicableCompany has been so requested to register by the Selling Shareholders, and shall use then held by the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.Selling Shareholders; and
(ii) Use all other Registrable Stock that any other Institutional Shareholder or any of their Permitted Transferees and, subject to Sections 3.5 and 5.2, any Management Shareholder (all such Shareholders, together with the Selling Shareholder, the "Holders") has requested the Company to register by written request received by the Company within 15 days after the receipt by such Holders of such written notice given by the Company’s best efforts , all to keep the relevant registration statement Continuously Effective extent necessary to permit the disposition (xin accordance with the intended methods thereof as aforesaid) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under Stock so to be registered; provided that subject to Section 5.1(e) hereof, the Company shall not be obligated to effect more than five Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration Registrations by DLJ Entities pursuant to this Section 2 5.1 and provided further that any Registrable Stock that is suspended ora Vested Warrant or a Vested Option shall have been exercised prior to its sale pursuant to any such registration. without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in the which case of such request, so revoked, shall not be considered a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. (b) The Company shall be obligated will pay all Registration Expenses in connection with any Demand Registration.
(c) A registration requested pursuant to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration this Section 5.1 shall not be deemed to have been effected unless the registration statement relating thereto (i) unless a registration statement with respect thereto has become effective, effective under the Securities Act and (ii) has remained effective for a period of at least 180 consecutive days (or such shorter period in which all Registrable Stock of the Holders included in such registration has actually been sold thereunder); provided that if after any registration statement requested pursuant to this Section 5.1 becomes effective (i) such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission SEC or other governmental agency or court for any reason not attributable due to the Selling Holders and such interference is not thereafter eliminated, actions or (iii) if the conditions omissions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part act of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition less than 75% of the Registrable Securities Stock included in accordance with such registration has been sold thereunder, such registration statement shall be at the intended method or methods sole expense of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with and shall not be considered a Demand Registration.
(d) If a Demand Registration involves a Public Offering and the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If managing underwriter shall advise the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing Shareholder that, in its opinionview, (i) the inclusion number of more than one class shares of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities Common Stock requested to be included in such offering registration (whether by Selling Holders or othersincluding Common Stock which the Company proposes to be included which is not Registrable Stock) exceeds the amount largest number of Shares which can be sold without having an adverse effect on such offering, including the price at which such Shares can be sold or (ii) the inclusion of some or all of the Shares owned by the Other Shareholders (including any particular category of Other Shareholders such as the Management Shareholders), would have an adverse effect on such offering, including the price at which such Shares can be sold (the "Underwriters' Limitations"), the Company will include in such offering within a price range acceptable registration, in the priority listed below, subject to the Majority Selling Holders, securities shall Underwriters' Limitations:
(A) Registrable Stock requested to be included in such offering and registration); and
(B) second, any Common Stock proposed to be registered by the related registration, to the extent Company.
(e) If Registrable Stock representing at least 50% of the amount which can number of Shares requested to be sold within registered by a Selling Shareholder is not included in any Demand Registration, then such price rangeShareholders may request that the Company effect an additional registration under the Securities Act of all or part of such Shareholders' Registrable Stock in accordance with the provisions of this Section 5.1, and on (x) the Company shall pay the Registration Expenses in connection with such additional registration and (y) such additional registration shall not be considered a pro rata basis among all Selling HoldersDemand Registration.
Appears in 1 contract
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at At any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”)January 1, shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company2000, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, Executive shall have the right to select request that the underwriter Company effect the registration under the Securities Act, of any or underwriters all of the Common Stock now or hereafter owned by Executive and manager whether or managers not such Common Stock was acquired pursuant hereto(the Common Stock requested to administer such underwritten offering or be registered is hereinafter referred to as the placement agent or agents for such agented offering"Requested Registration Shares"); provided, however, that each Person so selected such Requested Registration shall be reasonably acceptable to cover at least fifty (50) shares of the Company.
2.7Common Stock (as presently constituted). Whenever In such event, the Company shall use its best efforts to cause the Requested Registration Shares to be registered under the Securities Act and to effect and to comply with all such qualifications, compliances and requirements as may be necessary to permit the sale or other transfer of such Requested Registration Shares in the manner described in such request, including, without limitation, qualifications under applicable Blue Sky or other state securities laws (provided that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state); provided, however that (i) the Company shall not be obligated to file and cause to become effective more than three (3) registration statements in which Requested Registration Shares are sold pursuant to this Section 2 7(a), (ii) in connection the event that, for any reason, less than one-half of the number of Requested Registration Shares shall be registered under the Securities Act in accordance with an underwritten offering by a request made pursuant to this Section 7(a), then such registration shall not constitute one or more Selling Holders of Registrable Securities: the three registration statements referred to in clause (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securitiesabove, and (iii) the Underwriters’ Representative or Agent advises each Company shall not be obligated to effect such Selling Holder registration for a period of ninety (90) days following the request by Executive to do so if the Board determines in writing that, good faith (and so certifies to the Executive in its opinion, writing) that the inclusion Company is preparing a public offering of more than one class securities and that the registration of Registrable Securities the Requested Registration Shares would adversely affect such offeringthe Company's ability to offer its securities to the public, provided, however, the Demanding Holders holding at least a majority Company shall be entitled to only one such ninety (90) day period delay during any twelve (12) month period. In connection with any registration of Common Stock hereunder, the Company may allow any other stockholder of the Registrable Securities proposed Company to register shares of Common Stock in the same registration statement; provided that if not all Requested Registration Shares may be sold therein included as determined by themany managing underwriter, shall decide which class of Registrable Securities Executive shall be included therein in entitled to priority over other stockholders. The Executive's rights under this Section 7 shall survive Executive's employment hereunder and Executive's engagement as a Consultant hereunder, but shall terminate at such offering and the related registrationtime as Executive may, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable three (3) month period, offer and sell all of his Common Stock pursuant to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent Rule 144 of the amount Securities Act, or any successor law or regulation thereto, without any adverse effect on the price at which can such shares of Common Stock may be sold within such price range, and on a pro rata basis among all Selling Holderssold.
Appears in 1 contract
Demand Registration. Subject to the restrictions set forth below, if at any time after the Closing (ias defined in the Purchase Agreement), the Company shall receive from Holder a written request to register at least fifty percent (50%) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities owned by Holder (or its respective successors and permitted assigns) as of the date of such request, then outstanding the Company shall effect as soon thereafter as practicable, and in any event within fifteen (15) days of the “Demanding Holders”receipt of such request, the Registration under the Securities Act of all Registrable Securities which Holder requests to be registered. The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 2.01:
(a) shall at if the offering cannot be made on Form S-3 for any time make a written request reason other than the Company's failure to timely file its period reports under the Exchange Act; or
(b) if in the good faith judgment of the Board of Directors of the Company, such Registration would be seriously detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such Registration Statement at such time, and the Company shall furnish to Holder a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company for such Registration Statement to be filed in the near future and that it is, therefore, essential to defer the filing of such Registration Statement. In such event, the Company shall cause there have the right to be filed with the Commission defer such filing (except as provided in subparagraph (a) above) for a registration statement meeting the requirements period of not more than one hundred eighty (180) days after receipt of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number request of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to defer its obligation in this Section 2.1(ii) the filing of manner more than twice in any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 12-month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Sharesperiod. Furthermore, the Company shall promptly give written notice of such proposed registration not be required to all Holders. Any such Holder may, within twenty effect more than two (202) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 Registrations under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention 2.01 on behalf of the Secretary of the CompanyHolder; provided, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) counted for such purposes unless a registration statement with respect thereto such Registration has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders effective and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall to be registered on behalf of Holder have been disposed of pursuant to the Registration Statementsold, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods Section 3.01(a) of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2this Agreement.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Demand Registration. (ia) If Subject to Section 2.2(a), if, at any time on or after March 19, 2006, the Company shall receive from the Holders, a written request signed by the Holders of at least 40% of the then outstanding Underlying Common Stock and Redemption Common Stock, if any, determined as one class (a “Demand Request”), which Demand Request shall be forwarded by the Company to all Holders, that the Company register under the Securities Act all or more any portion of the Registrable Securities, then the Company shall use its reasonable best efforts to cause the Registrable Securities specified in such Demand Request to be registered as soon as reasonably practicable so as to permit the offering and sale thereof by such Holders that own an aggregate (the “Notice Holders”) and, in connection therewith, shall, as soon as reasonably practicable, but in any event not later than sixty (60) days (excluding any days which occur during the period of 51% or more a permitted Suspension Condition pursuant to Section 2.2(f) below) after receipt of a Demand Request, prepare and file with the SEC a registration statement (which may be a shelf registration statement on Form S-3, if such Form S-3 is available for use by the Company) to effect the registration and distribution of the Registrable Securities then outstanding (the “Demanding Holders”pursuant to Rule 415(a)(1)(i) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of under the Securities Act (a “Demand RegistrationRegistration Statement”), ; provided however that in no event shall the Company be obligated to prepare and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a file any Demand Registration Statement pursuant with respect to this less than 20% of the shares of Registrable Securities originally issued; provided further that in the event that the Company or its successor thereto ceases to be a company subject to or in compliance with Section 2.1 shall have been declared effective by 13 or 15(d) of the Commission. Any request made pursuant to this Section 2.1 shall be addressed Exchange Act, any such Demand Request may, at the option of the Holders and subject to the attention of provisions hereof, be delivered to the Secretary of the Company, and shall Company immediately.
(b) Each Demand Request shall: (i) specify the number of Registrable Securities intended to be registered, offered and sold by the intended methods of disposition thereof and that the request is for a Demand Registration Notice Holders pursuant to this Section 2.1(i).
thereto; (ii) The Company shall be entitled describe the nature or method of distribution of such Registrable Securities pursuant to postpone for up to one hundred twenty (120) days the filing of any such Demand Registration statement otherwise required to be prepared Statement; and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever contain the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention undertaking of the Secretary of the Company, Notice Holders to provide all such information and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof materials and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other take all such actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) permit the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction to comply with all applicable requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert , the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Exchange Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding rules and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority regulations of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersSEC thereunder.
Appears in 1 contract
Sources: Convertible Redeemable Exchangeable Preferred Stock Purchase Agreement (Webmd Corp /New/)
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more 2.1.1 On any date following the first shareholders meeting of the Registrable Securities then outstanding Company after the date hereof, and on demand of Purchasers holding at least 66 2/3% of the indebtedness evidenced by the Notes (the “Demanding Holders”) shall at any time make a written request to the Company"Demand Purchasers"), the Company shall cause there to be filed file with the Commission a shelf registration statement meeting covering the requirements resale of the Securities Act Shares on Form ▇-▇, ▇-▇, or S-3 (a “Demand Registration”)the "Registration Statement") which shall remain effective for the lesser of: (i) 3 years, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) until such time as the Holder does not beneficially own any Registrable Securities. The Company shall use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable and to cause the Shares to be qualified in such state jurisdictions as the Demand Purchasers may request.
2.1.2 Except as set forth herein, the Company shall take all reasonable steps necessary to keep the Registration Statement current and effective until all Shares have been distributed by the Purchaser including any necessary refiling of additional registration statements.
2.1.3 The Company shall be entitled to postpone for up to one hundred twenty (120) days require that the filing parties refrain from effecting any public sales or distributions of any Demand Registration statement otherwise required to be prepared and filed the Registrable Securities pursuant to this Section 2.1a Registration Statement that has been declared effective by the Commission or otherwise, if the Board determines, in its good faith reasonable judgment (with the concurrence board of directors of the managing underwriter, if any), Company reasonably determines that such registration and the Transfer public sales or Registrable Securities contemplated thereby distributions would materially interfere with, or require premature disclosure of, in any financing, acquisition or reorganization material respect with any transaction involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing board of any other Demand Registration statement otherwise required directors reasonably determines to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request material to the Company (the “Initiating Substantial Holder”)Company. The board of directors shall, shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and give the Purchaser written notice of any such development. In the event of a request by the board of directors of the Company that the Purchaser refrain from effecting any public sales or distributions of the Registrable Securities, the Company shall use be required to lift such restrictions regarding effecting public sales or distributions of the Company’s best efforts to have the registration declared effective under the Registrable Securities Act as soon as reasonably practicable, in each instance giving due regard to practicable after the need to prepare current financial statements, conduct due diligence and complete other actions that are board of directors shall reasonably necessary to effect a registered determine public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days sales or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended distributions by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all Purchaser of the Registrable Securities included therein shall have been disposed of pursuant to not interfere with such transaction, provided, that in no event shall any requirement that the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order Purchaser refrain from effecting public sales or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of distributions in the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, extend for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders90 days.
Appears in 1 contract
Sources: Registration Rights Agreement (Black Warrior Wireline Corp)
Demand Registration. (i) If one In case the Company shall receive from any Holder or more Holders a written request or requests that own an aggregate of 51% the Company effect a registration on Form S-3 with respect to all or more a part of the Registrable Securities owned by such Holder or Holders (or if Form S-3 is not permitted for such registration, then outstanding pursuant to a Form S-1 or any successor or similar registration statement (“Form S-1”)), including by means of a shelf registration pursuant to Rule 415 under the “Demanding Securities Act, and the Company is then eligible to register the Common Stock on Form S-3 or Form S-1, as applicable, the Company shall:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders”; and
(b) shall at as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any time make other Holder or Holders joining in such request as are specified in a written request to given within 15 days after receipt of such written notice from the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period 1.13 shall be extended by the aggregate number of required: (1) to become effective prior to 90 days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon following the effective date of a Shelf RegistrationCompany initiated registration (other than a registration effected solely to qualify a Company employee benefit plan or a business combination pursuant to Rule 145); (2) unless the Holders propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (before deduction of any underwriters’ discounts or commissions) of at least $10,000,000 with respect to a registration on Form S-3 registration or $30,000,000 with respect to a registration on Form S-1; (3) to remain effective for a period exceeding 180 days from the effective date thereof; and (4) if, provided no stop order or similar orderwithin the 12 month period preceding the date of such request, or proceedings the Company has already effected two registrations for such an order, is thereafter entered or initiated.
2.5. A registration the Holders pursuant to this Section 2 shall be on Form S-3 and permit 1.13.
(c) Subject to the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investorsforegoing, the Company shall file a Registration Statement on Form S-3 with respect to registration statement covering the Registrable Securities covered by the Registration Statement on Form S-1 or and other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) securities so requested to be declared effective no later than ninety (90) days registered as soon as practicable after receipt of the date request or requests of filing of such Registration Statement (or amendment)the Holders. Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect All expenses incurred in connection with a registration requested pursuant to this Section 2 1.13, including (without limitation) all registration, filing, qualification, printer’s and accounting fees and the reasonable fees and disbursements of counsel for the Company, shall be borne by the Company (but excluding fees and disbursements of counsel for the Holders).
(d) Notwithstanding the provisions of Section 1.13(a)-(c) above, if any registration requested pursuant to this Section 1.13 is proposed to be effected on Form S-3 and is in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securitiesoffering, and if the Underwriters’ Representative or Agent advises each such Selling Holder managing underwriter shall advise the Company in writing that, in its opinion, it is of material importance to the inclusion success of more than one class such proposed offering to file a registration statement on Form S-1 or to include in such registration statement information not required to be included pursuant to Form S-3, then the Company will file a registration statement on Form S-1 or supplement Form S-3 as reasonably requested by such managing underwriter.
(e) Notwithstanding the provisions of Registrable Section 1.13(a)-(d) above, if the filing, initial effectiveness or continued use of a registration statement, including a shelf registration statement pursuant to Rule 415 under the Securities Act, in respect of a registration pursuant to this Section 1.13 at any time would adversely affect such offeringrequire the Company to make a public disclosure of material non-public information, which disclosure in the Demanding Holders holding at least a majority good faith judgment of the Registrable Securities proposed Company’s Board of Directors (after consultation with external legal counsel) (i) would be required to be sold therein by themmade in any registration statement so that such registration statement would not be materially misleading, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if would not be required to be made at such time but for the Underwriters’ Representative filing, effectiveness or Agent advises each continued use of such Selling Holder registration statement and (iii) would have a material adverse effect on the Company or its business or on the Company’s ability to effect a material proposed acquisition, disposition, financing, reorganization, recapitalization or similar transaction, then the Company may, upon giving prompt written notice of such action to the Holders participating in writing such registration, delay the filing or initial effectiveness of, or suspend use of, such registration statement; provided that the Company shall not be permitted to do so (a) more than two times during any consecutive 12-month period, (b) for a period exceeding 30 days on any one occasion or (c) for a period exceeding 60 days in any consecutive 12-month period. In the event the Company exercises its rights under the preceding sentence, such Holders agree to suspend, promptly upon their receipt of the notice referred to above, their use of any prospectus relating to such registration in connection with any sale or offer to sell Registrable Securities. The Company shall promptly notify such Holders of the expiration of any period during which it exercised its rights under this Section 1.13. The Company agrees that, in the event it exercises its opinionrights under this Section 1.13(e), the amount of securities requested to be included in it shall, within 30 days following such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent ’ receipt of the amount which can notice of suspension, update the suspended registration statement as may be sold within such price range, necessary to permit the Holders to resume use thereof in connection with the offer and on a pro rata basis among all Selling Holderssale of their Registrable Securities in accordance with applicable law.
Appears in 1 contract
Sources: Registration Rights Agreement (Fox Factory Holding Corp)
Demand Registration. (i) If On one occasion, on or after November 1, 2000; if one or more Holders that own an aggregate of 5130% or more of the Registrable Registerable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the CompanyCompany (the "Demanding Holders"), the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.72.5) all or such number of such Demanding Holder’s 's Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no one (1) additional Demand Registration may be requested by a minimum of 30% of the remaining Registerable Securities, after the first Demand Registration is completed or withdrawn. The second request for a demand registration may be made pursuant to this Section 2.1 if within six eight (6) 8) months prior to after the date of such the initial request for a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by (in no event, however, will such a Demand Registration occur in the Commissionevent less than three (3) months remain before the Shares become freely tradable). Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Registerable Securities to be registered, the intended methods of disposition thereof Holders thereof, and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days - 60 day period, the filing of any registration statement relating to any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable of Registerable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Registerable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable 's Registerable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s 's best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s 's best efforts to keep the relevant registration statement Continuously Effective (x) if continuously effective pursuant to a Demand Registration, for up to two hundred seventy (270) 30 days or until such earlier date longer period as of which all the Registrable Securities under Underwriters' Representative shall require to complete the Demand Registration statement shall have been disposed of in offering, such completion to be evidenced by the manner described in Underwriters' Representative giving notice to the Registration Statementunderlying syndicate, and (y) if a Shelf Registrationany, for three yearsthat the distribution is completed. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.42.3. The Company shall be obligated to effect no more than three two Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf RegistrationRegistrations. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Registerable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Registerable Securities included therein (in the amount approved by the Underwriters' Representative) shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective continuously effective for a period of two hundred seventy (270) 30 days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.52.4. A registration pursuant to this Section 2 shall be on Form S-3 such appropriate registration form of the Commission as shall (i) be selected by the Company, and (ii) permit the disposition of the Registrable Registerable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.72.5. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Registerable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ ' Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within without a price range acceptable to disruption in the Majority Selling Holderssale of the Company's shares, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and Holders shall each be required to reduce, on a pro pro-rata basis among basis, the number of shares offered in such Demand Registration. Notwithstanding the foregoing, if the Company desires to sell securities for its own account as part of such registration, it may include a number of securities having a value equal to not more than 30% of the total value (based on estimated market prices) of all Selling Holderssecurities being sold pursuant to such registration. However, the Company's share shall be reduced pro- rata in the event the Holders are required to take a reduction as described above.
Appears in 1 contract
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at At any time make after October 30, 2000 the Shareholder may require the Company (pursuant to a written request notice to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of Shares of the Company (a “Shelf "Demand Registration”"). Any Such request made pursuant to this Section 2.2 (a "Demand Request") by the Shareholder shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File specify the registration statement with the Commission as promptly as practicable, class and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension Shares which the Shareholder intends to sell or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) daysdispose of, and (ii) if state the intended method or methods by which the Shareholder intends to sell or dispose of such Shares. In connection with any underwritten public offering, the underwriter thereof shall be selected by the Company, subject to the consent of the Shareholder, which shall not be unreasonably withheld. Upon receipt of a Shelf RegistrationDemand Request, upon the effective Company shall (as requested) (i) cause to be filed, within seventy-five (75) calendar days of the date of delivery to the Company of the request, a Shelf Registrationregistration statement covering such Shares which the Company has been so requested to register, provided no stop order or similar order, or proceedings providing for the registration under the Securities Act of such an order, is thereafter entered or initiated.
2.5. A registration pursuant Shares to this Section 2 shall be on Form S-3 and the extent necessary to permit the disposition of the Registrable Securities such Shares so to be registered in accordance with the intended method or methods of disposition distribution specified in such request (provided, further, that in either case the request pursuant Company may delay making such filing or taking such action by not more than sixty (60) calendar days if the Company, prior to Section 2.1(i) or Section 2.2, respectively. The Company agrees the time it would otherwise have been required to file all reports required to be filed by such registration statement or take such action, determines in good faith that the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (registration statement or amendment). Notwithstanding the foregoingtaking of such action would require the disclosure of material nonpublic information that, in the reasonable judgment of the Company, would be detrimental to the Company if so disclosed (and a delay would be likely to reduce the detrimental effect of such disclosure or obviate the need for such disclosure to be made), or would otherwise adversely affect a financing, acquisition, disposition, merger or other material transaction), and shall use its commercially reasonable best efforts to meet have such registration statement declared effective by the requirements of Form S-3 for so long SEC as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6soon as practicable thereafter. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, The Shareholder shall have the right to select the underwriter or underwriters and manager or managers exercise up to administer one (1) such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the CompanyDemand Registration right.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Cistron Biotechnology Inc)
Demand Registration. On not more than two occasions prior to ------------------- December 31, 2001, if Du Pont (i) If one requests in writing (a "Registration Request") that CEI register the sale or more Holders that own an aggregate other distribution under the Securities Act of 51% or more 1933, as amended (the "Securities Act") of any of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written which request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities intended to be registeredoffered and sold), the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled expresses Du Pont's present intent to postpone offer such Registrable Securities for up to one hundred twenty distribution, (120iii) days describes the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence nature or method of the managing underwriterproposed offer and sale thereof, if any), that and (iv) undertakes to provide all such registration information and materials relating to Du Pont and to take all such action as may be required of Du Pont in order to permit CEI to comply with all applicable requirements of the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving and Exchange Commission (the Company or any "Commission") and to obtain acceleration of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the effective date of the relevant registration statement therefor, CEI shall use all reasonable efforts to cause the offering of the Registrable Securities so specified in such request pursuant to Section 2.1(i).
(iii) Whenever be registered as soon as reasonably practicable so as to permit the Company shall have received a demand pursuant to Section 2.1(i) to effect sale or other distribution by Du Pont of the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included Securities specified in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that Registration Request, and shall make a written request to the Company (the “Initiating Substantial Holder”)in connection therewith prepare and file on an appropriate form, as CEI shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in reasonably determine, a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 statement under the Securities Act (a “Shelf Registration”)to effect such registration. Any request made Notwithstanding any provision to the contrary contained herein, CEI shall not be required to file any registration statement pursuant to this Section 2.2 shall be addressed to section 1.1
(a) in the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shallfollowing circumstances:
(i) File if, in the reasonable judgment of Rheinbraun or CEI, a registration statement with at the Commission as promptly as practicabletime and on the terms requested would materially adversely affect any financing by CEI that had been contemplated by Rheinbraun or CEI prior to the notice by Du Pont requesting registration, and CEI shall use the Company’s not be required to commence using its best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 section until the earliest of (1) 90 days after the completion of such financing, (2) the termination of any "black out" period required by the underwriters, initial purchasers or placement agents, if any, in connection with an underwritten offering by one such financing or more Selling Holders (3) promptly after abandonment of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and financing;
(ii) if, while a Registration Request is pending pursuant to this section, Rheinbraun or CEI determines in good faith, based on the advice of counsel, that proceeding with the registration would require the disclosure of material information that Rheinbraun or CEI has a bona fide business purpose for preserving as confidential, or CEI is unable to comply with Commission requirements, CEI shall not be required to effect such pending registration statement until the earlier of (1) the date upon which such material information is disclosed to the public or ceases to be material or (2) 120 days after the date CEI makes such determination; and
(iii) if Rheinbraun and CEI shall not have received undertakings reasonably satisfactory to them from any underwriter or underwriters to indemnify and hold them harmless, each of their directors and officers, and every other controlling person of them, from and against any and all loss, damage, liability, cost or expense to which they, any director or officer of them, or every other controlling person of them may become subject under the Underwriters’ Representative Securities Act or Agent advises each otherwise, insofar as such Selling Holder losses, damages, liabilities, costs or expenses (A) are caused by any untrue or alleged untrue statement of any material fact contained in writing thatthe registration statement or prospectus included therein, as amended or supplemented, or (B) arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in its opinionlight of the circumstances in which they were made, the amount of securities requested to be included not misleading, in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable each case to the Majority Selling Holdersextent, securities that such untrue statement or alleged untrue statement or omission or alleged omission was so made in conformity with written information furnished by such underwriter or underwriters.
(iv) The right of Du Pont to exercise registration rights pursuant to section 1.1(a) shall be included in such offering and the related registration, subject to the extent condition that the first Registration Request of the amount which can Du Pont shall be sold within such price range, and on a pro rata basis among all Selling Holdersfor not less than 20,000 Class A Shares (or equivalent).
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate Any Holder holding a majority of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written may request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, Registrable Securities. Upon receipt of such request (specifying that no request may be it is being made pursuant to this Section 2.1 if 2.2(a)), the Corporation shall use its best efforts to file within six ninety (690) months prior to the date days of such request receipt a Demand Registration Statement registration statement on Form S-3 for the resale of the Registrable Securities and shall use its best efforts to cause such registration statement to become effective as expeditiously as reasonably practical. The Corporation shall be obligated to prepare, file and cause to be effective only one registration statement pursuant to this Section 2.1 2.2(a). The Corporation shall have been declared be obligated to prepare, file and cause to be effective by the Commission. Any request made only two registration statements pursuant to this Section 2.1 shall be addressed 2.2(a). Upon the receipt of such request, the Corporation shall:
(i) promptly give to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities each remaining Holder written notice that a registration is to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).effected; and
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, include in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration (and any related qualification under blue sky laws or other compliance) all the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request specified in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request or requests made within 20 days after such written notice was sent by the Corporation, by any Holder. Further, the Corporation shall use all reasonable efforts to the Company (the “Initiating Substantial Holder”), shall cause such registration to be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a non-underwritten shelf registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant and to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities cause such shelf registration to be registeredmaintained effective for at least two (2) years.
(b) Notwithstanding the foregoing, the intended methods of disposition thereof and that the request is for a Shelf Registration Corporation shall not be obligated to take any action pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if in any particular jurisdiction in which the Corporation would be required to execute a general consent to service of process in effecting such Selling Holders have requested registration, qualification or compliance unless the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed Corporation is already subject to be sold therein by them, shall decide which class of Registrable Securities shall be included therein service in such offering jurisdiction and except as may be required by the related registration, and the other class shall be excludedSecurities Act; and or (ii) if the Underwriters’ Representative Corporation shall furnish to the Holders a certificate signed by the Chairman or Agent advises each such Selling Holder President of the Corporation stating that the Corporation has reasonably determined that it should postpone for a specified period of time not to exceed 120 days in writing thatthe case of clause (A) below, or 45 days in its opinionthe case of clause (B) below (each, a "Blackout Period"), any action pursuant to this Section, including, without limitation, the amount preparation and/or filing of securities requested a registration statement or prospectus or any amendments or supplements to any registration statement or prospectus, because any such filing would (A) materially impede, delay or otherwise interfere with an offer or sale of securities, acquisition, corporate reorganization or other significant transaction involving the Corporation, or (B) require disclosure of material information (other than an event described in clause (A) above) which, if disclosed at that time, would be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable materially harmful to the Majority Selling Holders, securities shall be included in interests of the Corporation and its shareholders. Upon delivery of such offering and the related registration, a certificate to the extent Holders by the Corporation, each of the amount which can Holders covenants that he shall (X) keep the fact of the notice strictly confidential, (Y) promptly halt any offer, sale, trading or transfer by him and his affiliates of any Common Stock for the duration of the Blackout Period set forth in the certificate or until the Blackout Period is earlier terminated by the Corporation and (Z) promptly halt any use or distribution of the registration statement and prospectus by him and his affiliates for the duration of the Blackout Period or until such Blackout Period is earlier terminated by the Corporation. The Corporation shall not be sold within such price range, entitled to deliver a certificate and on impose a pro rata basis among all Selling HoldersBlackout Period pursuant to Clause A more than once in any twelve month period.
Appears in 1 contract
Sources: Registration Rights Agreement (Bioject Medical Technologies Inc)
Demand Registration. At any time that the Company is eligible to use Form S-3 to register its securities under the Securities Act of 1933, as amended (i) If one or more Holders that own an aggregate of 51% or more the "Securities Act"), and prior to the Expiration Date, the Warrantholder shall have the right to make written request of the Registrable Securities then outstanding Company to register as a shelf registration under the rules and regulations (the “Demanding Holders”"Regulations") of the Securities and Exchange Commission (the "SEC") all of the shares of Common Stock issuable upon exercise of this Warrant or any other securities received by or to be received by the Warrantholder upon exercise of the Warrant (the "Registrable Stock"). The underlying shares of Registrable Stock specified in such request or a request pursuant to Section 4(c) hereof is referred to hereto as the "Subject Stock." Promptly upon receipt of such request the Company shall at any time make file with the SEC a written request registration statement on the applicable form for the registration of the Subject Stock ("registration statement") and use its best efforts to cause such registration statement to become effective (including, without limitation, filing post-effective amendments and appropriate compliance with the Regulations) as soon as practicable to permit or facilitate the sale and distribution of the Subject Stock. The Company is obligated to effect only one (1) such registration pursuant to this Section 4(a). Notwithstanding the provisions of this Section 4(a), if the Company shall furnish to the CompanyWarrantholder a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be seriously detrimental to the Company and its stockholders for such a registration statement to be filed in light of the existence of non-public information regarding the Company and it is therefore essential to defer a filing of such registration statement, the Company shall cause there have the right to be filed with the Commission defer such filing for a registration statement meeting the requirements period of not more than one hundred eighty (180) days after receipt of the Securities Act (request from the Warrantholder to effect such a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationregistration; provided, however, that the Company shall may not have postponed pursuant to this Section 2.1(ii) utilize the filing of right more than once in any other Demand Registration statement otherwise required to be prepared twenty-four month period; and filed pursuant to this Section 2.1 during provided, further that the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder Warrantholder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after in writing, withdraw such request for such registration and therefore preserve the date hereof to use Form S-3, right provided in order to fulfill its obligations under this Section 2(i4(a) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect Warrantholder to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in request such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2registration.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Warrant Agreement (Bayard Drilling Technologies Inc)
Demand Registration. (ia) If At any time on or after the date of this Agreement, if one or more Holders that own an aggregate of 51% or more a majority of the Registrable Securities then outstanding (the “Demanding Holders”) Then Outstanding shall at any time make a written request to the CompanyCompany (the "Demanding Holders"), the Company shall cause there to be promptly filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.72.6) all or such number of Registrable ----------- Securities as such Demanding Holder’s Registered Shares, as the Demanding Holder shall report request in writing; provided, however, -------- ------- that no request may be made pursuant to this Section 2.1 if within six nine (69) ----------- months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commissionsatisfied (as provided in Section 2.3). Any request ----------- ----------- made pursuant to this Section 2.1 shall be addressed to the attention of the ----------- Secretary of the Company with a copy to the President of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i2.1(a).. --------------
(iib) The Company shall be entitled to postpone for up to one hundred twenty (120) 120 days from receipt of the written request for a Demand Registration the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith ----------- reasonable judgment (with the concurrence of the managing underwriter, if any)judgment, that such registration and the Transfer or of Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, (a) any financing, acquisition or reorganization involving the Company or any of its material wholly owned subsidiaries or (b) any other material contract under active negotiation by the Company or any of its subsidiaries, disclosure of which is prohibited by applicable regulation, and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section -------- -------
2.1 during the 24 6 month period ended on the date of the relevant request pursuant --- to Section 2.1(i2.1(a).
(iii) Whenever ; and provided further that the Company shall have received a demand pursuant to Section 2.1(i) to effect the file any -------------- -------- ------- ---- registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made statement postponed pursuant to this Section 2.2 shall be addressed 2.1(b) as soon as -------------- reasonably practicable following the cessation of the conditions specified in clauses (a) or (b) of this Section 2.1(b) if prior to the attention expiration of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2120- -------------- day period.
2.32.2. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(ia) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s 's reasonable best efforts to have the registration statement declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(iib) Use the Company’s 's reasonable best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) 120 days or until such earlier date as of which all the Registrable Securities under included in the Demand Registration registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three yearsregistration statement. Notwithstanding the foregoing, if for any reason the effectiveness of a registration statement pursuant to this Section 2 is suspended or, in the case of a Demand Registration, --------- postponed as permitted by Section 2.1(ii2.1(b), the foregoing period shall be extended -------------- by the aggregate number of days of such suspension or postponement.
2.4(c) Whenever the Company shall have received a demand pursuant to Section 2.1(a) to effect the registration of any Registrable Shares, the Company -------------- shall promptly give written notice of such proposed registration to all Holders and the NV Holders. Any Holder may, within thirty (30) days after receipt of such notice, request in writing that all of such Holder's Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.3. The Company shall not be obligated to effect no more than three ten (10) Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf RegistrationRegistrations. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) --------- the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statementa registration statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) 120 days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively2.4. The Company agrees may, at its sole option, elect to file all reports required to be filed by the Company with the Commission in satisfy a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, request for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Demand Registration Statement on Form S-1 S-2 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 promulgated under the Securities Act and cause such Registration Statement (or any successor forms thereto), if such amendment) forms are then available to the Company; provided, however, that the Majority Selling Holders -------- ------- or the Underwriters' Representative of the proposed offering shall have the right to require that the Company disclose in the registration statement and form of prospectus included therein the type of information that would be required in a Form S-1 registration statement if the Underwriters' Representative reasonably deems such disclosure to be declared effective no later than ninety (90) days after advisable in order to successfully market the date of filing of securities intended to be sold in such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2offering.
2.62.5. If any registration pursuant to Section 2 involves an --------- underwritten offering (whether on a “"firm”, “," "best efforts” " or “"all reasonable efforts” " basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, Holders shall have the right to select the managing underwriter or underwriters and lead manager or managers to administer such underwritten offering or the lead placement agent or agents for such agented offering; provided, however, that each Person so selected shall be -------- ------- reasonably acceptable to the Company; and provided, further, that the Company --------- ------- shall have the right to select a co-managing underwriter or co-manager to administer an underwritten offering and a co-placement agent if an agented offering, provided that each Person so selected by the Company shall be -------- reasonably acceptable to the Majority Selling Holders.
2.7(a) With respect to any registration pursuant to this Section 2, the --------- Company may include in such registration any Financing Securities, Primary Securities or Other Securities, including Other Securities held by the NV Holders; provided, however, that if the Underwriters' Representative or Agent advises the Company in writing (with a copy to each Selling Holder) that the inclusion of all Registrable Securities of the Selling Holders, the Financing Securities, the Primary Securities and the Other Securities proposed to be included would materially interfere with the successful marketing (including pricing) of the Registrable Securities proposed to be included in such registration, then the number of Registrable Securities, Financing Securities, Primary Securities and Other Securities proposed to be included in such registration shall be included in the following order:
(i) If Financing Securities are included in the registration, then, (A) first, the Other Securities held by the ----- NV Holders requested to be included in such registration pursuant to the NV Registration Rights Agreement and all Financing Securities being registered pursuant to the exercise of contractual rights comparable to the rights granted in either this Section 2 or Section 3, pro rata based on the estimated --------- --------- gross proceeds from the sale thereof; (B) second, the Registrable ------ Securities requested to be included in such registration by the Selling Holders pursuant to this Section 2, pro rata based on the --------- estimated gross proceeds from the sale thereof; (C) third, all ----- Other Securities (except those Other Securities held by the NV Holders) being registered, pro rata based on the estimated gross proceeds from the sale thereof; and (D) fourth, the Primary ------ Securities.
(ii) If Financing Securities are not included in the registration, then (A) first, the Registrable Securities ----- requested to be included in such registration by the Selling Holders pursuant to this Section 2 and the Other Securities held --------- by the NV Holders requested to be included in such registration pursuant to the NV Registration Rights Agreement, (B) second, all ------ Other Securities (except those Other Securities held by the NV Holders) being registered, pro rata based on the estimated gross proceeds from the sale thereof; and (C) third, the Primary ----- Securities. In the event of a cutback, the allocation between the Selling Holders and the NV Holders shall be such that the Selling Holders, as a group, shall be able to include Registrable Securities in the registration equal to 21% of the amount of securities allocated to the Selling Holders and the NV Holders under clause (ii)(A) of the preceding sentence.
(c) Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling --------- Holders of Registrable Securities: (i) , if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ ' Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, them shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Firearms Training Systems Inc)
Demand Registration. If at any time after __________, 2004 the Company receives a written request from the Holders representing at least 66 2/3% of the Registrable Securities, to effect a registration with respect to any or all of the Registrable Securities, the Company will do the following:
(a) Within ten days of receipt of the request from the Holders initiating the request for registration, give written notice of the proposed registration to the Holders who did not initiate the request for registration.
(b) As soon as practicable, but in no event more than 180 days, effect the requested registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) to permit or facilitate the sale and distribution of (i) If one or more Holders that own an aggregate of 51% or more of the all Registrable Securities then outstanding specified in such request, (the “Demanding Holders”ii) shall at any time make all Registrable Securities of non-initiating holder(s) joining in such request that have been identified in a written request by the non-initiating holders (subject to the Company, limitation in accordance with Section 5 below) within 30 days after receipt of such written notice from the Company shall cause there and (iii) securities proposed to be filed with sold by the Commission a registration statement meeting the requirements of the Securities Act Company for its own account.
(a “Demand Registration”), and each Demanding Holder c) The Holders shall be entitled to have included therein one registration under this Section 2.
1. In the event that the Holders participating in such registration determine for any reason (subject other than at the request or recommendation of the Company or the managing underwriters) not to Section 2.7) all or such number proceed with a registration of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made Registrable Securities requested pursuant to this Section 2.1 if within six (6) months prior to at any time before the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have registration statement has been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1such registration statement, if the Board determines, in its good faith reasonable judgment (theretofore filed with the concurrence of the managing underwriterCommission, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant is withdrawn with respect to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statementcovered thereby, and (y) if a Shelf Registrationsuch Holders participating in such registration agree to reimburse the Company for the fees, for three years. Notwithstanding costs and expenses incurred by it in connection therewith, then the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, Holders participating in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or exercised their right to require the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable Company to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions register Common Stock pursuant to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holdersthis Section 2.1. If the Holders participating in such registration determine not to proceed with such a registration upon the request or recommendation of the Company or the managing underwriters, such Holders shall not be required to reimburse the Company for its fees, costs and expenses and the Holders shall not be deemed to have exercised their right to require the Company to register Registrable Securities pursuant to this Section 2.1. The Company shall have complied with not, without the prior written consent of the Holders holding more than 50% of the Registrable Securities then held by all Holders, effect any registration of its obligations under this Agreement, securities (other than on Form S-4 or Form S-8) from the date the Company receives a right to demand a registration request pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon until the earlier of (xi) 90 days after the date as of on which all of the Registrable Securities included therein shall securities covered by such request have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and sold or (ii) if a Shelf Registration, upon 180 days after the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in statement covering such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2securities.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Reorganization Agreement (Pacific Coast Apparel Co Inc)
Demand Registration. On four occasions after the date the Companies' obligation to keep the Resale Shelf Registration Statement effective pursuant to paragraph 1(b) hereof terminates until the earlier of (i) If the fourth anniversary of such date and (ii) the date on which all of the Registrable Shares are eligible for resale without restriction or limitation under Rule 144, and subject to the conditions set forth in this Agreement, including, without limitation, the conditions set forth in this paragraph 1(c), one or more Holders that own an aggregate of 51% or more of will have the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a right, by written request notice delivered to the CompanyCompanies (a "Demand Notice"), to require the Company shall cause there Companies to be filed register Registrable Shares under and in accordance with the Commission a registration statement meeting the requirements provisions of the Securities Act (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that that: (i) no request such Demand Registration may be made pursuant required unless the Holder or Holders requesting such Demand Registration provide to this Section 2.1 if within six the Companies a certificate (6the "Authorizing Certificate") months that is signed by Holders seeking to include in such Demand Registration Registrable Shares constituting at least 25% of the then outstanding Registrable Shares as of the date the Demand Notice is given and (ii) no Demand Notice may be given prior to nine months after the effective date of any immediately preceding Demand Registration. The Authorizing Certificate shall set forth (A) the name of each Holder signing such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the CompanyAuthorizing Certificate, and shall specify (B) the number of Registrable Securities Shares held by each such Holder, and, if different, the number of Registrable Shares such Holder has elected to be have registered, (C) a certification from each such Holder that it is requesting the registration of only those Paired Shares received by such Holder pursuant to redemption of Redeemable Securities received pursuant to the Contribution Agreements and (D) the intended methods of disposition thereof and of the Registrable Shares. Notwithstanding the foregoing, a good faith decision by a Holder to withdraw Registrable Shares from registration will not affect the Companies' obligations hereunder even if the amount remaining to be registered constitutes less than 25% of the then outstanding Registrable Shares, provided that the request is for such a registration nevertheless will constitute a Demand Registration pursuant to under this Section 2.1(i).
1. The Companies shall use reasonable efforts to cause to be filed a registration statement (ii"Demand Registration Statement") relating to any Demand Registration as soon as practicable after the Demand Notice is received and will use reasonable efforts to cause the same to be declared effective by the SEC as soon as practicable thereafter. The Company shall be entitled Companies agree to postpone for up use reasonable efforts to one hundred twenty (120) days keep the filing registration statement in respect of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence continuously effective for a period of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationat least 90 days; provided, however, that that, without limiting the Company shall not have postponed pursuant to this Section 2.1(ii) the filing effect of any other Demand Sections 7, 8 or 8A hereof, after such Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto Statement has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution offering of Registrable Securities thereunder Shares pursuant to such Registration Statement is interfered with by or becomes subject to any stop order, injunction or other order or requirement of the Commission or other governmental or administrative agency or court for any reason not attributable to that prevents, restrains or otherwise limits the Selling Holders and sale of Registrable Shares under such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waivedRegistration Statement, other than by reason of some act or omission by any Holder participating in such registration, and such Registration Statement does not become effective within a failure on reasonable period of time thereafter, such period not to exceed 60 days from the part date of such stop order, injunction or other governmental order or requirement, then the Selling Holders. If applicable time period for which the Company shall have complied with its obligations under this Agreement, a right Companies are required to demand a registration pursuant to this Section 2 keep such Registration Statement effective shall be deemed increased by the amount of time by which such stop order, injunction or other governmental order or requirement has prevented, restrained or otherwise limited the sales of Registrable Shares. Within ten business days after receipt of such Demand Notice, the Companies will serve written notice thereof (the "Notice") to have been satisfied (i) if a Demand Registrationall other Holders and will, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant subject to the Registration Statementprovisions hereinbelow, and (y) include in such registration all Registrable Shares with respect to which the date as of which such Demand Registration shall have been Continuously Effective Companies receive written requests for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) inclusion therein within ten business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration receipt of the offer and sale Notice by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2applicable Holder.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Wyndham International Inc)
Demand Registration. 2.1 Registration Other Than on Form F-3 or Form S-3. Subject to the terms of this Agreement, at any time or from time to time after the earlier of (i) If one or more Holders that own an aggregate of 51% or more the three (3) year anniversary of the Registrable Securities then outstanding Closing Date or (ii) the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, date that no request may be made pursuant to this Section 2.1 if within is six (6) months prior to after the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention closing of the Secretary Company Qualified IPO, Holders holding twenty-five percent (25%) or more of the Company, and shall specify voting power of the number of then outstanding Registrable Securities to be registered, the intended methods of disposition thereof and that the held by all Holders may request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, writing that the Company shall not have postponed pursuant effect a Registration on any internationally recognized exchange that is reasonably acceptable to this Section 2.1(ii) the filing such requesting Holders. Upon receipt of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received such a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Sharesrequest, the Company shall (x) promptly give written notice of such the proposed registration Registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, Holders and (y) if a Shelf Registrationas soon as practicable, for three years. Notwithstanding use its reasonable best efforts to cause the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, Registrable Securities specified in the case request, together with any Registrable Securities of a Demand Registrationany Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, postponed to be Registered and/or qualified for sale and distribution in such jurisdiction as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4Initiating Holders may request. The Company shall be obligated to effect no more than three Demand (3) Registrations pursuant to this Section 2.1 that have been declared and such number ordered effective; provided that if the sale of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes all of the preceding sentenceRegistrable Securities sought to be included pursuant to this Section 2.1 is not consummated for any reason other than due to the action or inaction of the Holders including Registrable Securities in such Registration, registration such Registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement constitute one of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration Registration rights granted pursuant to this Section 2 2.1; provided further that the Registration pursuant to Section 2.2 or 3.1 shall not be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all constitute one of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration rights granted pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.22.1.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Shareholder Agreements (LightInTheBox Holding Co., Ltd.)
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more 2.1 During the period commencing on the 181st day after the Closing of the Registrable Securities then outstanding (transaction contemplated by the “Demanding Holders”) Merger Agreement and ending on the 240th day after the completion of the transaction contemplated by the Merger Agreement, the ETCI Shareholders shall at any time make have the right to submit to the Corporation a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, notice that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify states the number of Registrable Securities to be registered, sold (a "Demand Notice") to effect a registration under the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone Securities Act for up to one hundred twenty sixty-four percent (12064%) days the filing of (including any Demand Registration statement otherwise required to be prepared and filed shares previously registered pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence Paragraph 3 hereinbelow) of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere withheld by such ETCI Shareholder, or require premature disclosure of, any financing, acquisition or reorganization involving whereupon the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company Corporation shall promptly give each Holder (other than the submitting ETCI Shareholders) written notice of such proposed registration to all HoldersDemand Notice. Any such Upon the irrevocable written request of any Holder may, (other than the submitting ETCI Shareholder) given within twenty twenty-one (2021) days after receipt mailing of any such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated notice by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registeredCorporation, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company Corporation shall use its commercially reasonable efforts to meet cause to be registered under the requirements Securities Act all of Form S-3 for so long as any the Registrable Securities remain outstanding that each such Holder has requested be registered, up to the limitation of the aggregate of sixty-four percent (64%) (including any shares previously registered pursuant to Paragraph 3 hereinbelow) of the Registrable Securities for any such Holder; and under no circumstances provided that the Corporation shall the Company not be obligated to file and cause to become effective a Registration State on any form other registration statement under this subsection unless the aggregate number of shares of Common Stock to be covered by such statement is 200,000 or more shares; and provided, further, that the Corporation shall not be obligated to file and cause to become effective more than Form S-3 to fulfill ist obligations one (1) registration statement under Section 2.2this subsection.
2.6. If any 2.2 All Registrable Securities to be sold under a registration statement pursuant to Section 2 involves this section shall be sold by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, Inc. (or any successor thereto) in an underwritten offering orderly process.
2.3 Notwithstanding the foregoing, the Corporation may delay a registration statement, and may withhold efforts to cause the registration statement to become effective, if the Corporation determines in good faith that such registration might (i) interfere with or affect the negotiation or completion of any transaction that is being contemplated by the Corporation (whether on or not a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, final decision has been made to undertake such transaction) at the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have time the right to select the underwriter delay is exercised, or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if involve initial or continuing disclosure obligations that might not be in the Underwriters’ Representative or Agent advises each such Selling Holder in writing thatbest interest of the Corporation's stockholders. If, in its opinionafter a registration statement becomes effective, the amount of securities requested Corporation advises the Holders that the Corporation considers it appropriate for the registration statement to be included in amended, the Holders of such offering (whether by Selling Holders or others) exceeds shares shall suspend any further sales of their registered shares until the amount which can be sold in such offering within a price range acceptable to Corporation advises them that the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersregistration statement has been amended.
Appears in 1 contract
Sources: Registration Rights Agreement (Braun Consulting Inc)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall If, at any time make a written request on or after the date of this Agreement, the Investors convert the Warrants into New Preferred Stock, such Investors shall have the right to require the Company to, pursuant to the Companyterms of this Agreement, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements register all or part of the their Registrable Securities Act (a “Demand Registration”) by delivering to the Company a written notice stating that such right is being exercised, naming, if applicable, the Investors whose Registrable Securities are to be included in such registration (collectively, the “Demanding Shareholders”), and specifying the number of each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding HolderShareholder’s Registered SharesRegistrable Securities to be included in such registration; provided that the Company shall not be obligated to effect, as in total, more than two such Demand Registrations. If the filing of a Registration Statement pursuant to this Agreement would require the Company to make a public disclosure of material non-public information, which disclosure, in the good-faith judgment of the Company based on the advice of counsel, (i) would be required to be made in such Registration Statement so that such Registration Statement would not be materially misleading, (ii) would not be required to be made at such time but for the filing, effectiveness or continued use of such Registration Statement or (iii) would reasonably be expected to adversely affect in any material respect the Company or its business or the Company’s ability to effect a bona fide material proposed acquisition, disposition, financing, reorganization, recapitalization or similar transaction, then the Company may, upon giving prompt written notice of such action to the Demanding Holder Shareholders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement; provided that the Company shall report not be permitted to do so (x) more than once in writingany six-month period or (y) for any single period of time in excess of 90 days, or for periods exceeding, in the aggregate, 90 days during any 12-month period. In order to defer the filing of a Registration Statement pursuant to this Section 2, the Company shall promptly (but in any event within 10 days), upon determining to seek such deferral, deliver to each Demanding Shareholder a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 2 and a statement of the reason for such deferral and an approximation of the anticipated delay.
(b) Upon receipt of a Demand Registration request, on or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Registrable Securities specified by the Demanding Shareholders that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-1 or such other form available to register for resale the Registrable Securities as a secondary offering and shall contain (unless otherwise directed by at least 85% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 Holder shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable SharesAgreement, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s its best efforts to have the registration cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as soon promptly as reasonably practicablepossible after the filing thereof (in any case within six (6) months of the Closing Date), in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s shall use its best efforts to keep such Registration Statement continuously effective under the relevant registration statement Continuously Effective Securities Act until the date that all Registrable Securities covered by such Registration Statement (xi) if have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, and the conditions of Rule 144(i)(2) have been met, as determined by the counsel to the Company pursuant to a Demand Registrationwritten opinion letter to such effect, for up addressed and acceptable to two hundred seventy the affected Holders (270) days or until such earlier date the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of which all 5:00 p.m. Eastern Time on a Trading Day. The Company shall immediately notify the Registrable Securities under the Demand Registration statement shall have been disposed Holders via facsimile or by e-mail of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a Registration Statement by the next Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. Eastern Time on the Trading Day five (5) days after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holder within two (2) Trading Days of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(d).
(c) Notwithstanding the registration pursuant to this obligations set forth in Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii2(a), if the foregoing period shall Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be extended registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly inform each of the Holders thereof and use its reasonable best efforts to file amendments to the Initial Registration Statement as required by the aggregate Commission, covering the maximum number of days Registrable Securities permitted to be registered by the Commission, on Form S-1 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such suspension or postponement.
2.4. The amendment, the Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary use diligent efforts to provide each and every Substantial Holder advocate with the right to request one Shelf Registration. For purposes Commission for the registration of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
(d) Notwithstanding any other provision of disposition specified in this Agreement and subject to the request payment of liquidated damages pursuant to Section 2.1(i) 2(d), if the Commission or Section 2.2, respectively. The Company agrees to file all reports required any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be filed by registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a timely manner so Holder as to remain eligible or become eligibleits Registrable Securities, as the case may benumber of Registrable Securities to be registered on such Registration Statement will be reduced pro rata based on all other securities to be included on such Registration Statement. In the event of a cutback hereunder, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than give the Holder at least five (5) business days after Trading Days prior written notice along with the calculations as to such Holder’s allotment. In the event the Company first meets amends the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Initial Registration Statement on Form S-3 in accordance with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall will use its commercially reasonable best efforts to meet file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-1 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
(e) If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review, or (iii) [reserved], or (iv) after the effective date of a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days (which need not be consecutive calendar days) during any 12-month period or (v) the Company shall fail for any reason to satisfy the current public information requirement under Rule 144 or the requirements of Form S-3 for so long Rule 144(i)(2) as any to the applicable Registrable Securities remain outstanding (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i), (iii) and (v), the date on which such Event occurs, and for purpose of clause (ii) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iv) the date on which such ten (10) or fifteen (15) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to the Holders an amount in cash, as partial liquidated damages and not as a penalty, their pro rata portion of $75,000, on the Event Date and on every thirtieth (30th) day (pro rated for periods totaling less than thirty days) thereafter. The foregoing liquidated damages shall not apply if the Registrable Securities may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 at the time the Event occurs, provided that the Company shall also be in compliance with the requirements of Rule 144(i)(2) and the current public information requirement under Rule 144 to the extent required. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event.
(f) [Reserved]
(g) Notwithstanding anything to the contrary contained herein, in no circumstances event shall the Company be obligated permitted to file name any Holder or affiliate of a Registration State on Holder as any form other than Form S-3 to fulfill ist obligations under Section 2.2Underwriter without the prior written consent of such Holder.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Charge Enterprises, Inc.)
Demand Registration. (i) If one or more Subject to Section 3.2, if the Holders that own an aggregate of 51at least 30% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the CompanyCompany (the "Demanding Holders"), the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.75.6) all or such number of such Demanding Holder’s Registered Shares's Registrable Securities, as the Demanding Holder shall report request in writing; provided, however, that no request may be made pursuant to this Section 2.1 5.1 if within six (6) months prior to the date of such request a Demand Registration Statement registration statement pursuant to this Section 2.1 5.1 shall have been declared effective by the Commission. Such Demand Registration shall be effected by the Company by means of a shelf registration pursuant to Rule 415 of the Securities Act if so requested by the Demanding Holders. Any request made pursuant to this Section 2.1 5.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i5.1(i). The Holders shall be entitled to no more than two (2) Demand Registrations.
(ii) The Company shall be entitled to postpone for up to one hundred twenty ninety (12090) days the filing of any Demand Registration registration statement otherwise required to be prepared and filed pursuant to this Section 2.15.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or of Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii5.1 (ii) the filing of any other Demand Registration registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 5.1 during the 24 twelve (12) month period ended on the date of the relevant request pursuant to Section 2.1(i5.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i5.1(i) to effect the registration of any Registrable SharesSecurities, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s 's Registrable SharesSecurities, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request (iv) Subject to Section 5.6, in connection with an underwritten offering, the Company (the “Initiating Substantial Holder”)and, shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary approval of the Company, and other holders of Common Stock (other than Holders) shall specify be given the number opportunity to include shares of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2Common Stock in such offering ("Other Included Shares").
2.35.2. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best all reasonable efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best all reasonable efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if or such earlier time as the Company would not have any obligation to include the Registrable Securities that have not been disposed of in the manner described in the Registration Statement in a Shelf Registration, for three years. registration pursuant to Section 5 or Section 4 or the Registerable Securities are no longer Registerable Securities under the definition of "Registrable Securities." Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 5 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii5.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.45.3. The Company shall be obligated to effect no more than three a total of two (2) Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf RegistrationRegistrations. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration Demand Registration pursuant to this Section 2 5 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) Statement or the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if or such earlier time as the Company would not have any obligation to include the Registrable Securities that have not been disposed of in the manner described in the Registration Statement in a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order registration pursuant to Section 5 or similar orderSection 4, or proceedings for such an orderthe Registerable Securities are no longer Registerable Securities under the definition of "Registrable Securities." Any Demand Registration Statement which, after filing with the Commission is thereafter entered or initiatedwithdrawn by the Holders, shall be deemed to have been effective in determining the number of Demand Registrations the Company is obligated to effect hereunder.
2.55.4. A registration pursuant to this Section 2 5 shall be on Form S-3 such appropriate registration form of the Commission as shall (i) be selected by the Company and be reasonably acceptable to the Demanding Holders and (ii) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment5.1(i). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.65.5. If any registration pursuant to Section 2 5 involves an underwritten offering (whether on a “"firm”, “," "best efforts” " or “"all reasonable efforts” " basis or otherwise), or an agented offering, the Majority Selling Demanding Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.75.6. Whenever the Company shall effect a registration pursuant to this Section 2 5 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ ' Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Demanding Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders; first for the account of the Demanding Holders, second by all other Selling Holders and third by the Company and other holders with respect to the Other Included Shares.
Appears in 1 contract
Sources: Registration Rights Agreement (National Record Mart Inc /De/)
Demand Registration. (ia) If one At any time on or more Holders that own an aggregate of 51% or more after the second anniversary of the Registrable Securities then outstanding (IPO Closing Date, if the “Demanding Holders”) Holder shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding the Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares's Registrable Securities, as the Demanding Holder shall report request in writing; provided, -------- however, that the fair market value of the Holder's Registrable Securities to be ------- included in such registration shall not be less than $50.0 million as of the date of such written request (unless such Registrable Securities represent all of the Holder's Registrable Securities); and provided further, however, that no ---------------- ------- request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the CompanyCompany (or if there is no such officer, the President), and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i2.1(a).
(iib) The Company shall be entitled to postpone for up to one hundred twenty sixty (12060) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.12.1 (or delay seeking effectiveness of a Registration Statement which has been filed), if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any)judgment, that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature and seriously detrimental disclosure of, any material financing, acquisition or reorganization or other material matter involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders Holder notice of such determination; provided, however, that the Company -------- ------- shall not have postponed pursuant to this Section 2.1(ii2.1(b) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).Demand
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(ia) File the registration statement with the Commission as promptly as practicable, and and, subject to Section 2.1(b), shall use the Company’s best 's reasonable efforts to have the registration statement declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.; and
(iib) Use the Company’s best 's reasonable efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy ninety (27090) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in or filing of the case of a Demand Registration, Registration Statement or seeking effectiveness thereof is postponed as permitted by Section 2.1(ii2.1(b), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. 2.3 A registration pursuant to this Section 2 shall be on Form S-3 such appropriate registration form of the Commission as shall (a) be selected by the Company and be reasonably acceptable to the Holder and (b) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment2.1(a). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 2.4 If any registration pursuant to this Section 2 involves an underwritten offering (whether on a “firm”, “"firm commitment," "best efforts” " or “"all reasonable efforts” " basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, Holder shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so -------- ------- selected shall be reasonably acceptable to the Company.
2.7. Whenever 2.5 No securities other than Registrable Securities (including without limitation shares to be sold for the Company Company's account) shall effect a be included in any registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested without the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority prior written consent of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersHolder.
Appears in 1 contract
Sources: Registration Rights Agreement (Timberland Growth Corp)
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more all of the Registrable Securities then outstanding are not included in a Shelf Registration that is Continuously Effective pursuant to Section 3.1 hereof within one hundred twenty (120) days from the “Demanding Holders”) shall date hereof, or if at any time thereafter all of the Holders' Registrable Securities are not covered by a Continuously Effective registration statement, the Holders of at least 25% of the Registrable Securities may make a written request to the CompanyCompany (the "Demanding Holders"), that the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.74.6) all or such number of such ----------- Demanding Holder’s Registered Shares's Registrable Securities, as the Demanding Holder shall report request in writing; provided, however, that no request may be made pursuant to this -------- -------
Section 2.1 4.1 if within six (6) months prior to the date of such request a Demand Registration Statement ----------- registration statement pursuant to this Section 2.1 4.1 shall have been declared ----------- effective by the Commission. Any request made pursuant to this Section 2.1 4.1 shall ----------- be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i4.1(i). The Holders shall be entitled to no more than four -------------- Demand Registrations.
(ii) The Company shall be entitled to postpone for up to one hundred twenty ninety (12090) days the filing of any Demand Registration registration statement otherwise required to be prepared and filed pursuant to this Section 2.14.1, if the Board determines, in ----------- its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or of Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, -------- ------- that the Company shall not have postponed pursuant to this Section 2.1(ii4.1(ii) the --------------- filing of any other Demand Registration registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 4.1 during the 24 twelve (12) month period ended on ----------- the date of the relevant request pursuant to Section 2.1(i4.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i4.1(i) to effect the registration of any Registrable Shares-------------- Securities, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s 's Registrable SharesSecurities, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request (iv) Subject to Section 4.6, in connection with an ----------- underwritten offering, the Company (the “Initiating Substantial Holder”)and, shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary approval of the Company, and other holders of Common Stock (other than Holders) shall specify be given the number opportunity to include shares of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2Common Stock in such offering ("Other Included Shares").
2.34.2. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best all reasonable efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best all reasonable efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if or such earlier time as the Company would not have any obligation to include the Registrable Securities that have not been disposed of in the manner described in the Registration Statement in a Shelf Registration, for three years. registration pursuant to Section 4 or Section 3 pursuant to the definition of "Registrable --------- --------- Securities." Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 4 is suspended or, in the case of a --------- Demand Registration, postponed as permitted by Section 2.1(ii4.1(ii), the foregoing -------------- period shall be extended by the aggregate number of days of such suspension or postponement.
2.44.3. The Company shall be obligated to effect no more than three a total of four Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf RegistrationRegistrations. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration Demand Registration pursuant to this Section 2 4 shall be deemed to --------- have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) Statement or the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration and Put Rights Agreement (Western Micro Technology Inc /De)
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more of The Shareholders shall have the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request right to require the Company, as expeditiously as possible, to use its best efforts to effect the registration of the shares of Registrable Stock that the Shareholders shall request, pursuant to a Registration Statement (the "DEMAND REGISTRATION RIGHTS"), subject to the following limitations:
(a) such Demand Registration Rights shall be exercised by written notice to the Company (a "DEMAND REGISTRATION REQUEST");
(b) the Company shall cause there not be obligated to be filed with the Commission effect and pay for more than a registration statement meeting the requirements total of the Securities Act three (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.73) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made registrations pursuant to this Section 2.1 if within six 2.1;
(6c) months any Demand Registration Request may only be made by Shareholders requesting to sell shares of Registrable Stock that have an aggregate offering price of at least $100 million, based on the closing market price on the New York Stock Exchange on the trading day prior to the date of such request request;
(d) the Company shall not be required to file a Demand Registration Statement to register Shares pursuant to this Section 2.1 shall have been declared effective by until after the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention expiration of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).IPO Lock-up Period;
(iie) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise be required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 2.1 more than once during any consecutive 12-month period; and
(f) the Company shall not be required to effect a registration pursuant to this Section 2.1 if it is requested pursuant to clause (a) above at any time after the third anniversary of the expiration of the IPO Lock-up Period. No Shareholder may participate in connection any underwritten registration pursuant to this Section 2.1 (or exercise its right to register Shares pursuant to Section 3.1 with an underwritten offering by one or more Selling Holders of Registrable Securities: respect to any such registration) unless such Shareholder (i) if such Selling Holders have requested agrees to sell its Registrable Stock on the inclusion therein of more than one class of Registrable Securitiesbasis provided in any underwriting arrangement approved by the Company, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to which approval shall not be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; unreasonably withheld and (ii) if completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the Underwriters’ Representative or Agent advises each terms of such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersunderwriting arrangements.
Appears in 1 contract
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant 2.2.1. Pursuant to this Section 2.1 if within six 2.2.1, the Holders are hereby collectively granted a single one-time right (6“Demand Right”) months prior to cause the date Trust to register some or all of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Holders’ Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationSecurities; provided, however, that the Company Trust shall not have postponed pursuant be obligated to this Section 2.1(iiregister such Registrable Securities if the number of Registrable Securities with respect to which the Holders seek to exercise their Demand Right is not more than fifty percent (50%) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant total number of Registrable Securities with respect to Section 2.1(i).
(iii) Whenever which the Company Holders could have exercised their Demand Right. Such Demand Right shall have received a demand pursuant to Section 2.1(i) to effect be exercised in accordance with the registration terms of any Registrable Sharesthis Agreement, the Company shall promptly give and written notice of exercise of the Demand Right shall be provided to the Trust in accordance with Section 3.5 herein. For purposes of Section 2.2, the Holders shall select one Person to be their representative (“Representative”) with respect to exercising the Demand Right and shall notify the Trust in writing designating the Representative and exercising the Demand Right. The Trust shall be entitled to rely on the representations and communications of such proposed registration Representative in determining whether the Demand Right has been exercised in accordance with the provisions herein and in preparing and filing the Registration Statement and with respect to all other matters hereunder; provided, however, that the Trust shall continue to provide notice as required in this Article II to all of the Holders. Any The Demand Right must be exercised, if at all, simultaneously with the exercise of the Holders’ right to cause a Redemption (as defined in Section 8.6.A of the Partnership Agreement) of all or a portion of such Holder mayHolders’ Units and, within twenty subject only to Section 2.2.4, the exercise of such Demand Right shall be irrevocable.
2.2.2. Upon receipt of such notice, the Trust shall file, as soon as practicable but not later than seventy-five (2075) days after receipt of such notice, request in writing that all of such Holder’s Registrable Sharesand subject to Section 2.2.1 hereof, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with Registration Statement under the Securities Act for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”)Act. Any request made pursuant The Trust agrees to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s its reasonable best efforts to have the registration cause such Registration Statement to be declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than within ninety (90) days after the date of filing of such Registration Statement. The Trust further agrees to use its reasonable best efforts to keep such Registration Statement continuously effective for a period of forty-five (or amendment)45) days following the date on which such Registration Statement is declared effective.
2.2.3. Notwithstanding If the foregoing, Holders intend to distribute the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances covered by the request by means of an underwritten offering, they shall so advise the Company be obligated to file Trust as a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration part of their request made pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering2.2.1. In addition, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, Holders shall have the right to select the underwriter investment banker or underwriters investment bankers and manager or managers to administer in any such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall such investment bankers and managers and the proposed underwriter arrangements must be reasonably acceptable satisfactory to the Company.
2.7Trust. Whenever The Holders shall enter into an underwriting agreement in customary form with the Company shall effect a Trust and with the underwriter or underwriters. The Holders may not participate in any underwritten registration pursuant to under this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: 2.2.3 unless they (i) if agree to sell their securities on the basis provided in any underwriting arrangements approved by the Trust and (ii) complete and execute all questionnaires, powers of attorney, indemnities, lock-up letters, underwriting agreements and other documents and requests for information required under the terms of such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority underwriting arrangements.
2.2.4. If any of the Registrable Securities proposed registered pursuant to any Registration Statement are to be sold therein in an underwritten primary offering by themthe Trust, and no Suspension Event (as defined in Section 2.5.2) shall decide which class have occurred with respect to such offering, and the managing underwriter or underwriters deliver an opinion to the Trust and the Holders that the total number of Registrable Securities shall be included therein REIT Shares that the Holders and any other Person intend to include in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which number of REIT Shares that can be sold in such offering within a price range acceptable to the Majority Selling Holdersoffering, securities there shall be included in such underwritten offering and the related registration, to the extent number of REIT Shares of the amount which Holders or such other Person or Persons that in the opinion of such underwriters can be sold within in such price rangeoffering, with such REIT Shares being allocated pro rata among the holders of REIT Shares to be sold on the basis of the number of REIT Shares to be registered; provided, however, that such pro rata allocation shall not affect the number of shares being offered by the Trust in any such offering. If any of the Registrable Securities registered pursuant to any Registration Statement are to be sold in an underwritten offering in which the Trust is not offering any REIT Shares, and on a the managing underwriter or underwriters deliver an opinion to the Trust and the Holders that the total number of REIT Shares that the Holders and any other Person intend to include in such offering exceeds the number of REIT Shares that can be sold in such offering, there shall be included in such underwritten offering the number of REIT Shares that in the opinion of such underwriters can be sold, with such REIT Shares being allocated pro rata among the holders of REIT Shares to be sold on the basis among all Selling of the number of REIT Shares to be registered. In the event that the number of Registrable Securities registered pursuant to any Registration Statement is limited in the manner provided in this Section 2.2.4, and the result of such limitation is that less than thirty-five percent (35%) of the total number of Registrable Securities with respect to which the Holders could have exercised their Demand Right is included in such Registration Statement, the Holders shall have the one-time right, but not the obligation, to revoke the exercise of the Demand Right. Upon such revocation, the Holders shall be entitled to exercise the Demand Right for a period of six (6) months following the end of the sixty-day period referred to in Section 2.5.3.
2.2.5. The Trust shall promptly notify in writing each Holder of the filing and effectiveness of the Registration Statement and shall furnish, without charge, to each Holder a copy of the Registration Statement (including any amendments, supplements and exhibits thereto) and the prospectus included in the Registration Statement (including each preliminary prospectus) in conformity with the requirements of the Securities Act, and such other documents as such Holder may reasonably request in order to facilitate the public sale or other Transfer of Registrable Securities owned by the Holders.
2.2.6. The Trust shall use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective and to comply with the provisions of the Securities Act with respect to the Transfer of the Registrable Securities for as long as the Trust keeps the Registration Statement effective in accordance with Section 2.2.2.
2.2.7. The Trust shall promptly notify the Holders of the existence of any fact of which the Trust becomes aware that results in the Registration Statement, the prospectus related thereto or any document incorporated therein by reference, containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading. In such event, the Trust shall promptly prepare and furnish to each Holder a reasonable number of copies of a prospectus supplement or amendment so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading.
Appears in 1 contract
Sources: Registration Rights Agreement (Federal Realty Investment Trust)
Demand Registration. (a) efforts to effect, as expeditiously as possible, the registration under the Securities Laws of:
(i) If one the Shares that Holdco has been so requested to qualify or more Holders register by Clairvest, then held by Clairvest; and
(ii) all other Shares that own an aggregate of 51% or more of the Registrable Securities then outstanding any other Shareholder (the “Demanding Holders”) shall at any time make a written request to the Companyall such Shareholders, together with Clairvest, the Company shall cause there "HOLDERS") has requested Holdco to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”)qualify or register, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.76.2 hereof, by written request received by Holdco within ten (10) all or days after the receipt by such number Holders of such Demanding Holder’s Registered Shareswritten notice given by Holdco, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Demanding Holder Shares so to be registered; provided that (i) Holdco shall report not be obligated to effect more than one Demand Registration in writing; providedany six-month period, however, that no request may and (ii) Holdco shall not be made obligated to effect more than three (3) Demand Registrations for Clairvest pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 6.1, unless Holdco shall be addressed eligible to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in file a registration with the Commission in accordance with the Securities Act for an offering statement on a delayed or continuous basis pursuant to Rule 415 Form S-3 under the Securities Act (or other comparable short form, including a “Shelf Registration”short form prospectus under National Policy No. 47 of the Canadian Securities Administrators). Any request made , in which event there shall be no limit on the number of such Demand Registrations pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify 6.1; provided that the number of Registrable Securities to be registered, the intended methods of disposition thereof and Demand Registrations that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company Holdco shall be obligated to effect no pursuant to this Section 6.1 shall be reduced by one (1) in the event that Clairvest requests one or more than three Incidental Registrations as defined in and pursuant to Section 6.2, regardless of the number of Incidental Registrations requested by Clairvest. Promptly after the expiration of the ten (10) day period referred to in Section 6.1(a)(ii) hereof, Holdco will notify all the Holders to be included in the Demand Registrations Registration of the other Holders and the number of Shares requested to be included therein. Clairvest may, at any time prior to the effective date of the prospectus or registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to Holdco and such number other Holders revoking such request, in which case such request, so revoked shall not be considered a Demand Registration if any fees incurred by Holdco as a result of Shelf Registrations as may such revoked request are paid by Clairvest.
(b) Subject to Section 6.1(c), Holdco will pay all Registration Expenses in connection with any Demand Registration; provided that if Holdco is required to undertake an audit of Holdco that it would not otherwise have been required to undertake, the costs associated with such audit shall be necessary for the account, pro rata, of Clairvest and the other Holders, if any, 18 18 participating in the Demand Registration.
(c) A qualification or registration requested pursuant to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration this Section 6.1 shall not be deemed to have been effected unless the prospectus or registration statement relating thereto (i) unless a registration statement with respect thereto has become effectiveeffective under the Securities Laws, and (ii) has remained effective for a period of at least ninety (90) days (or such shorter period in which all Shares of the Holders included in such registration has actually been sold thereunder); provided that if after such any prospectus or registration statement has become effective, requested pursuant to this Section 6.1 becomes effective such prospectus or registration or the related offer, sale or distribution of Registrable Securities thereunder statement is interfered with by any stop order, cease trade order, injunction or other order or requirement of the Commission SEC, the Canadian securities regulatory authorities or other governmental agency or court for any reason not attributable solely due to the Selling Holders actions or omissions to act of Holdco, such prospectus or registration statement shall be at the sole expense of Holdco and shall not be considered a Demand Registration. In the event that less than seventy-five (75%) percent of Clairvest's Shares initially proposed to be included in such interference is not thereafter eliminated, prospectus or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into registration have been sold thereunder and Clairvest pays all Registration Expenses in connection with such prospectus or registration, such requested qualification or registration are shall be deemed not satisfied or waived, other than by reason of be a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration Demand Registration pursuant to this Section 2 shall be deemed to have been satisfied 6.1.
(id) if If a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for involves a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, Public Offering and the Underwriters’ Representative or Agent advises each such Selling Holder in writing managing underwriter shall advise Holdco and Holders that, in its opinionview, (i) the inclusion number of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities Shares requested to be included in such offering registration or qualification (whether including Shares which Holdco proposes to be included), or (ii) the inclusion of some or all of the Shares owned by Selling Holders or others) the Holders, in either case, exceeds the amount largest number of Shares which can be sold without having an adverse effect on such offering, including the price at which such Shares can be sold (the "MAXIMUM OFFERING SIZE"), Holdco will include in such offering within a price range acceptable registration or qualification, in the priority listed below, up to the Majority Selling HoldersMaximum Offering Size:
(i) first, securities shall so much of the Shares requested to be included in such registration or qualification by Clairvest, as would not cause the offering and to exceed the related registrationMaximum Offering Size;
(iii) third, any Shares proposed to be registered or qualified by Holdco.
(e) No Shareholder shall have the extent right to restrain or delay any registration or qualification of Shares by Holdco on the amount which can be sold within such price range, and on basis of any dispute or controversy concerning a pro rata basis among all Selling HoldersDemand Registration.
Appears in 1 contract
Demand Registration. All expenses other than underwriting ------------------- discounts and commissions incurred in connection with registrations, filings or qualifications pursuant to Section 1.2, including (iwithout limitation) If one or more Holders that own an aggregate all registration, filing and qualification fees, printers' and accounting fees, fees and disbursements of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to counsel for the Company, and the Company shall cause there to be filed reasonable fees and disbursements of one counsel for the selling Holders selected by them with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary approval of the Company, and which approval shall specify the number of Registrable Securities to not be registeredunreasonably withheld, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days borne by the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationCompany; provided, however, that the Company shall not have postponed pursuant be required to this Section 2.1(ii) the filing pay for any expenses of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request registration proceeding begun pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect 1.2 if the registration of any Registrable Shares, request is subsequently withdrawn at the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by themregistered (in which case all participating Holders shall bear such expenses), shall decide which class unless the Holders of a majority of the Registrable Securities shall be included therein agree to forfeit their right to one demand registration pursuant to Section 1.2; provided further, however, that if at the time of such withdrawal, (i) the Holders have learned of a material adverse change in the condition or business of the Company from that known or reasonably foreseeable to the Holders at the time of their request and have withdrawn the request with reasonable promptness following disclosure by the Company of such offering and the related registrationmaterial adverse change, and the other class shall be excluded; and or (ii) if the Underwriters’ Representative Holders have provided the Company with a written opinion of legal counsel to the Holders advising the Holders that the registration statement, or Agent advises each such Selling Holder any prospectus contained therein, contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in writing thatlight of the circumstances under which they were made, then, in its opinioneach case, the amount Holders shall not be required to pay any of securities requested such expenses and shall retain their rights pursuant to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersSection 1.2.
Appears in 1 contract
Sources: Investors' Rights Agreement (Moai Technologies Inc)
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more of On any two (2) occasions after the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Companydate hereof, the Company shall shall, at the written request of any Holder of Registrable Shares, cause there to be filed with the Commission a registration statement meeting the requirements of (a "Demand Registration Statement") under the Securities Act (a “Demand Registration”), and each Demanding relating to the sale by the Holder shall be entitled to have included therein (subject to Section 2.7) of all or such number part of such Demanding Holder’s Registered 's Registrable Shares, as the Demanding Holder shall report in writing; provided, however, that -------- ------- the Company shall have no request may be made obligation pursuant to this Section 2.1 if within six (62(a)(i) months prior unless the conditions set forth in Section 2(a)(ii), and elsewhere in this Agreement, are satisfied. Upon the Company's determination that such conditions have been satisfied, the Company shall give written notice of the proposed registration to all Holders of Registrable Shares. Subject to the date of conditions set forth below, each such request a Holder shall have the right, by giving written notice to the Company, within fifteen (15) days after the notice referred to in the preceding sentence has been given by the Company, to elect to have included in the Demand Registration Statement all or part of such Holder's Registrable Shares. Thereupon, the Company shall use commercially reasonable efforts to cause such Demand Registration Statement to be filed with, and be declared effective by, the Securities and Exchange Commission (the "SEC") and shall use commercially reasonable efforts to cause the Registrable Shares elected to be included in the Demand Registration Statement to be registered under the Securities Act. Notwithstanding the foregoing, the Company shall be entitled to postpone the filing of any Demand Registration Statement otherwise required to be prepared and filed by it pursuant to this Section 2.1 shall have been declared effective by 2(a)(i) for a reasonable period of time (but in no event longer than ninety (90) days) if, at the Commission. Any time it receives a request made pursuant to this Section 2.1 shall be addressed to for registration, the attention Board of Directors of the Secretary Company has determined in good faith that such filing would require the disclosure of a material pending transaction or event and that such disclosure would have a material adverse effect on the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and ; provided that the request is for a right to postpone the filing of any Demand Registration pursuant to this Section 2.1(i)Statement may only be exercised once in any twelve (12) month period.
(ii) The Company shall be entitled to postpone for up to one hundred twenty have no obligation under Section 2(a)(i) unless the following conditions are satisfied:
(120A) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, Any Holder who requests that the Company shall not have postponed pursuant cause to this Section 2.1(ii) the filing of any other be filed a Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request Statement pursuant to Section 2.1(i2(a)(i) must provide to the Company a certificate (the "Authorizing Certificate"), substantially in the form of Exhibit A hereto, --------- that is signed by the Holders of at least twenty-five percent (25%) of the aggregate number of all outstanding Registrable Shares, at the time such request is made. The Authorizing Certificate shall set forth (i) the name of each Holder signing such Authorizing Certificate, (ii) the number of Registrable Shares held by each such Holder, and, if different, the number of Registrable Shares such Holder has elected to have registered, and (iii) a certification from each such Holder that it is requesting the registration of only those shares of Common Stock received by such Holder upon the redemption of its Units pursuant to the Partnership Agreement. Any Holder whose Registrable Shares have become eligible for sale pursuant to Rule 144(k) promulgated under the Securities Act shall not be included for purposes of calculating the percentage of Holders required to sign an Authorizing Certificate. If the Company determines that a Holder's Shares have become eligible for sale pursuant to Rule 144(k), the Company shall, at the request of such Holder, deliver to such Holder an opinion of counsel to such effect.
(iiiB) Whenever A Holder may only request that the Company shall have register those Registrable Shares of Common Stock received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, by such Holder from the Company shall promptly give written notice upon the redemption of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that some or all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering's Units.
(iiC) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three file only one Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five during any twelve (512) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a month period during which no Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include has been in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2effect.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Bradley Real Estate Inc)
Demand Registration. (ia) If one or At any time after December 31, 2000 if the Holders of more Holders that own an aggregate of 51than 33-1/3% or more of the Registrable Securities then outstanding (Shares so demand, Computone shall effect the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of under the Securities Act of all or any portion of the Shares (a “"Demand Registration”"). In order to accomplish such Demand Registration, such Holder or Holders of the Shares shall send written notice to Computone, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and notice shall specify the number of Registrable Securities Shares sought to be registered. The Holders of the Shares shall have the right to one such Demand Registration.
(b) Within ten days after receipt of any notice for a Demand Registration, the intended methods Computone shall give written notice to all other Holders of disposition thereof and Restricted Stock that the request is notice for a Demand Registration has been received, and Computone shall include in such Demand Registration, subject to the limitations set forth below, all shares of Restricted Stock with respect to which Computone has received written requests for inclusion from such other Holders within 30 days after Computone's mailing of such notice. If the method of disposition shall be an underwritten public offering, the Holders of a majority of the shares of Restricted Stock to be sold in such offering may designate the managing underwriter of such offering, subject to the approval of Computone, which approval shall not be unreasonably withheld, conditioned or delayed.
(c) Computone shall be obligated to register Restricted Stock pursuant to this Section 2.1(i)4; provided, however that such obligation shall be deemed satisfied in each instance only when a registration statement covering all of the shares of Restricted Stock specified in notices received pursuant to this Section 4, for sale in accordance with the method of disposition specified by the requesting Holders, shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such shares shall have been sold pursuant thereto.
(iid) The Company Computone shall be entitled to postpone include in any registration statement referred to in this Section 4, for up to one hundred twenty (120) days sale in accordance with the filing method of any Demand Registration statement otherwise required disposition specified by the requesting Holders, shares of Common Stock to be prepared sold by Computone for its own account, or any issued and filed pursuant outstanding shares of Common Stock to this Section 2.1, if be sold by others except as and to the Board determinesextent that, in its good faith reasonable judgment (with the concurrence opinion of the managing underwriter, if any)such method of disposition shall be an underwritten public offering, that such inclusion would adversely affect the marketing of the Restricted Stock to be sold. Except for registration and the Transfer or Registrable Securities contemplated thereby would materially interfere withstatements on Form ▇-▇, or require premature disclosure of, any financing, acquisition or reorganization involving the Company ▇-▇ or any successor thereto, Computone will not file with the Commission any other registration statement with respect to its Common Stock, whether for its own account or that of its wholly owned subsidiaries and other stockholders, from the Company promptly gives the Demanding date of receipt of a notice from requesting Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) 4 until the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date completion of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect period of distribution of the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registrationcontemplated thereby.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Demand Registration. (ia) If one Upon the written request of the Holder or more Holders that own an aggregate of 51% or more at least fifty percent (50%) of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial HolderHolders”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with ) the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and the registration under the Securities Act of such number of Shelf Registrations Registrable Securities as may are requested to be necessary to provide each and every Substantial Holder registered by the Initiating Holders, all in accordance with the right to request one Shelf Registration. For purposes following provisions of this Agreement, provided that the obligation of the preceding sentence, Company to effect such registration shall not be deemed to have been effected (i) unless a satisfied until the registration statement with respect thereto has become effective, (ii) if after such effective under the Securities Act and only so long as no stop order suspending the effectiveness of the registration statement has become effective, such registration or the related offerqualification or registration of any of the Registrable Securities for sale in any jurisdiction in which the Company shall be required pursuant to Section 5(e) to register or qualify such Registrable Securities shall not have been issued and no proceedings for that purpose shall have been initiated or threatened by the Securities and Exchange Commission (the “Commission”) or any similar state agency. Within ten (10) days of the request for registration by the Initiating Holders, sale or distribution the Company shall give written notice of such request to all Holders, and such Holders shall be entitled, by written notice to the Company and subject to Section 4(a) hereof, to include shares of Registrable Securities thereunder is interfered with in any registration prepared by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company pursuant to this Section 3(a). The Company shall have complied with its obligations under this Agreement, a right not be obligated to effect more than one (1) demand a registration pursuant to this Section 2 3(a).
(b) In addition to the registration rights provided pursuant to Section 3(a) hereof, at any time and from time to time after six months following a firm commitment underwritten initial public offering of shares of the Company’s capital stock (an “IPO”), upon the written request of the Initiating Holders, or at the request of any Holder which agrees to register Registrable Securities having a value of Five Million Dollars ($5,000,000) or more after an IPO, the Company shall be deemed obligated to effect the registration under the Securities Act on Form S-3 (if the Company is then eligible to use such registration form), or any similar short form registration adopted by the Commission for which the Company may then be eligible, of all or any portion of the Registrable Securities held by such Holder, all in accordance with the applicable provisions of this Agreement.
(c) Whenever the Company shall be requested by the Initiating Holders pursuant to Section 3(a) or by a Holder pursuant to Section 3(b) to effect the registration of Registrable Securities under the Securities Act, the Company shall, as provided in Section 5, effect the registration under the Securities Act of the Registrable Securities which the Company has been requested to register pursuant to Section 3(a) or (b), all to the extent requisite to permit the disposition by such Holder of the Registrable Securities so registered.
(d) In connection with requesting registration of Registrable Securities pursuant to Section 3(a) or (b), if the Initiating Holders, or a Holder in the case of Section 3(b), advise the Company that they intend to publicly offer or distribute Registrable Securities to be covered by the registration statement pursuant to a firm commitment underwriting with an investment banking firm or firms selected by the Holders, the Company and any other person entitled to include shares of any securities of the Company in such registration statement shall enter into the same underwriting agreement with such underwriter or underwriters as shall such Holders, containing representations, warranties and agreements not substantially different from those customarily made by an issuer or selling shareholder in underwriting agreements with respect to secondary distributions.
(e) Neither the Company nor any of its security holders (other than the Holders) shall have been satisfied the right to include any securities of the Company in a registration requested pursuant to Section 3(a) or (b) unless (i) if a Demand Registration, upon such securities are of the earlier of (x) the date same class as of which all any of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which in such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, registration and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, offering is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 either (A) not being underwritten and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities requesting registration consent to such inclusion in writing or (B) a firm commitment underwriting and the managing underwriter has informed the Holders that inclusion of such securities will not adversely affect the price range or the probability of success of the offering and such securities are allocated as provided in Section 3(f) and sold on the same terms and conditions as apply to the Registrable Securities being sold. If any security holders of the Company (other than the Holders) register securities of the Company in a registration in accordance with the provisions of Section 3(a) or (b), such security holders shall pay their pro rata share of the Registration Expenses, as defined below, unless the Company has agreed to pay such expenses and, in the opinion of counsel to the Holders, such payment would not affect the ability of the Registrable Securities to be registered or qualified under the blue sky laws of any jurisdiction.
(f) If the Company or any of its security holders request the right to include equity securities in a registration statement filed pursuant to Section 3(a) or (b) and such securities are proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such a firm commitment underwritten offering and the related registration, and managing underwriters advise the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing Company that, in its their opinion, the amount total number of securities requested to be included in such offering (whether by Selling Holders or others) registration exceeds the amount number of securities which can be sold in such offering within a without adversely affecting the price range acceptable or probability of success of such offering, the securities to the Majority Selling Holders, securities shall be included in such offering and the related registrationshall include (i) first, to the extent all of the amount which can be sold within such price rangeRegistrable Securities being registered, and on a (ii) second, pro rata among the other holders of the Company’s securities requesting inclusion in such registration on the basis among all Selling Holdersof the number of shares of securities requested to be registered by such holders and (iii) third, such other securities being offered by the Company.
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more At any time after the six month anniversary of the Registrable Securities then outstanding (consummation by the “Demanding Holders”) Company of the IPO, if the Company shall at any time make receive a written request to from Sponsors holding more than 10% of the Companythen outstanding Registrable Securities (such requesting Persons, the “Requesting Shareholders”) that the Company effect the registration under the Securities Act of all or any portion of such Requesting Shareholders’ Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall cause there promptly give notice of such requested registration (each such request shall be referred to be filed with the Commission a registration statement meeting the requirements of the Securities Act (herein as a “Demand Registration”) at least 10 days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Shareholders and thereupon shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities for which the Requesting Shareholders have requested registration under this Section 6.01, and
(ii) subject to the restrictions set forth in Section 6.01(d), all other Registrable Securities that any other Shareholders (all such Shareholders, together with the Requesting Shareholders, the “Registering Shareholders”) have requested the Company to register by request received by the Company within seven days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that no Person may participate in any registration statement pursuant to this Section 6.01(a) unless such Person agrees to sell their Registrable Securities to the underwriters selected as provided in Section 6.05(f) on the same terms and each Demanding Holder shall be entitled conditions as apply to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writingRequesting Shareholders; provided, however, that no request such Registering Shareholders 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 Shareholder as may be made reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to this 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; provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Registrable Securities requested to be included by all Registering Shareholders in such Demand Registration are at least $100,000,000.
(b) Promptly after the expiration of the seven-day period referred to in Section 2.1 if within six (66.01(a)(ii) months hereof, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, a majority of the Requesting Shareholders may revoke such request without liability to any of the other Registering Shareholders, by providing a notice to the Company revoking such request.
(c) The Companies shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) If a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by involves a Public Offering and the Commission. Any request made pursuant to this Section 2.1 shall be addressed to managing underwriter advises the attention of Company and the Secretary of the CompanyRequesting Shareholders that, and shall specify in its view, the number of Registrable Securities that the Registering Shareholders, the Company and the Management Shareholders propose to include in such registration 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 “Demand Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Demand Maximum Offering Size:
(i) first, (A) all Registrable Securities requested to be registeredregistered by the Registering Shareholders and (B) Registrable Securities requested to be registered by Management Shareholders that are exercising piggyback registration rights pursuant to the Management Shareholders Agreement (the “Requesting Management Shareholders”), (the Registrable Securities in clauses (A) and (B), allocated, if necessary for the offering not to exceed the Demand Maximum Offering Size, pro rata among the Requesting Shareholders, the intended methods other holders of disposition thereof Registrable Securities and that the request is for a Demand Registration pursuant Requesting Management Shareholders on the basis of the relative number of Registrable Securities so requested to this Section 2.1(ibe included in such registration by each, unless the managing underwriter reasonably determines otherwise, in which case the allocation of such Registrable Securities shall be in the manner reasonably determined by the managing underwriter).; and
(ii) second, all Registrable Securities proposed to be registered by the Company.
(e) The Company shall be entitled to postpone may defer the filing (but not the preparation) of a registration statement, or suspend the continued use of a registration statement, required by Section 6.01 for a period of up to one hundred twenty (120) 60 days after the filing of any Demand Registration request to file a registration statement otherwise required if at the time the Company receives the request to be prepared and filed pursuant to this Section 2.1register Registrable Securities, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries Subsidiaries are engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in such registration statement (but would not be required if such registration statement were not filed), and the Company promptly gives the Demanding Holders notice of such determination; providedBoard determines in good faith, howeverafter consultation with external legal counsel, that such disclosure would have a material adverse effect on the Company shall not have postponed or its business or on the Company’s ability to effect a proposed material acquisition, disposition, financing, reorganization, recapitalization or similar transaction. A deferral of the filing of a registration statement, or the suspension of the continued use of a registration statement, pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”6.01(e), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a lifted, and the requested registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 statement shall be addressed to the attention of the Secretary of the Companyfiled forthwith, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended orif, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii)deferral, the foregoing period shall be extended by negotiations or other activities are disclosed or terminated. In order to defer the aggregate number filing of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminatedstatement, or (iii) if suspend the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason continued use of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreementregistration statement, a right to demand a registration pursuant to this Section 2 6.01(e), the Company shall be deemed to have been satisfied promptly (i) if a Demand Registrationbut in any event within five days), upon the earlier of (x) the date as of which all determining to seek such deferral or suspension, deliver to each Requesting Shareholder a certificate signed by an executive officer of the Registrable Securities included therein shall have been disposed of pursuant to Company stating that the Registration StatementCompany is deferring such filing, and (y) or suspending the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date continued use of a Shelf Registrationregistration statement, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 6.01(e) and permit the disposition a general statement of the Registrable Securities in accordance with the intended method reason for such deferral or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligiblesuspension, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration an approximation of the offer anticipated delay. The Company may defer the filing, or suspend the continued use of, a particular registration statement pursuant to this Section 6.01(e) no more than twice in any twelve month period; provided, that there must be an interim period of at least 60 days between the end of one deferral or suspension period and sale the beginning of a subsequent deferral or suspension period. The Company agrees, that in the event it exercises its rights under this Section 6.01(e), it shall, within 10 days following receipt by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the holders of Registrable Securities covered by of the Registration Statement on Form S-1 notice of deferral or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holdersuspension, as the case may be, shall have update the right deferred or suspended registration statement as may be necessary to select permit the underwriter or underwriters and manager or managers holders of Registrable Securities to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 resume use thereof in connection with an underwritten offering by one or more Selling Holders the offer and sale of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of their Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersaccordance with applicable law.
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) Company shall at any time make receive a written request to from any Avista Fund holding outstanding Registrable Securities (such requesting Persons, the Company“Requesting Stockholders”) that the Company effect the registration under the Securities Act of all or any portion of such Requesting Stockholders’ Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall cause there promptly give notice of such requested registration (each such request shall be referred to be filed with the Commission a registration statement meeting the requirements of the Securities Act (herein as a “Demand Registration”) at least ten (10) days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Stockholders and thereupon shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 7.01, and
(ii) subject to the restrictions set forth in Section 7.01(d), all other Registrable Securities that any other Stockholders (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within seven (7) days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that no Person may participate in any registration pursuant to this Section 7.01(a) unless such Person agrees to sell their Registrable Securities to the underwriters selected as provided in Section 7.05(f) on the same terms and each Demanding Holder shall be entitled conditions as apply to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writingRequesting Stockholders; provided, however, that no request 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 made reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to this 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 proceeds received by such Person from the sale of his, her or its Registrable Securities pursuant to such registration; provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least $25,000,000.
(b) Promptly after the expiration of the seven (7)-day period referred to in Section 2.1 if within six (67.01(a)(ii) months hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, a majority of the Requesting Stockholders may revoke such request without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected; provided that holders of Registrable Securities shall pay all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Stockholder, except for the fees and disbursements of the Stockholders borne and paid by the Company as a Registration Expense.
(d) If a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by involves a Public Offering and the Commission. Any request made pursuant to this Section 2.1 shall be addressed to managing underwriter advises the attention of Company and the Secretary of the CompanyRequesting Stockholders that, and shall specify in its view, the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries Registering Stockholders and the Company promptly gives propose to include in such registration exceeds the Demanding Holders notice largest number of Registrable Securities that can be sold without having an adverse effect on such determination; providedoffering, however, that including the Company shall not have postponed pursuant to this Section 2.1(ii) price at which such Registrable Securities can be sold (the filing of any other “Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(iMaximum Offering Size”).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of include in such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registrationpriority listed below, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable up to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.Maximum Offering Size:
Appears in 1 contract
Demand Registration. (ia) If one or more Holders At any time commencing on July 11, 1999 and terminating on a date that own an aggregate is three (3) years from and after the date of 51% or more this Agreement, provided the Company has not effected a registration of the Registrable Stock under the Securities then outstanding Act, the Holders of not less than $500,000 in original principal amount of the Notes (the “Demanding "Initiating Holders”") may request in writing (the "Request") that the Company use its reasonable best efforts to register under Rule 415 of the Securities Act all or any portion of the Registrable Stock held by such Initiating Holders provided that the shares of Registrable Stock for which such registration has been requested shall constitute at any time make a written request to least 50% of the Companytotal number of shares of Registrable Stock. Within twenty (20) days after receipt of the Request, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number give written notice of such Demanding Holder’s Registered Shares, as requested registration to all other Holders who were not parties to the Demanding Holder shall report Request. The Company will include in writing; provided, however, that no request may be made such registration pursuant to this Section 2.1 if within six 3 (6subject to allocation as set forth in this Section 3) months prior in addition to the date Registrable Stock specified in the Request all other Registrable Stock with respect to which the Company has received written requests for inclusion within ten (10) days after the Company's mailing of such request a Demand Registration Statement notice.
(b) The Company's obligation to register Registrable Stock pursuant to this Section 2.1 3 shall have been declared effective by in all cases be subject to the Commission. Any request made following limitations and qualifications:
(i) The Company: (A) shall be required to effect only one such registration pursuant to this Section 2.1 3 and (B) shall not be addressed obligated to the attention file a registration statement at any time if a special audit of the Secretary Company would be required by the rules and regulations of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).Commission; and
(ii) The Company shall be entitled to postpone for up a reasonable period of time not to one hundred twenty (120) days exceed 180 days, the filing of any Demand Registration registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), it determines that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere withwith any pending financing, acquisition, corporate reorganization or other material transaction involving the Company, or require premature disclosure of, any financing, acquisition or reorganization involving would be seriously detrimental to the Company or any and its shareholders, and promptly notifies the Holders of its wholly owned subsidiaries such determination and the Company promptly gives reasons therefor. In the Demanding Holders notice event of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Sharespostponement, the Company shall promptly give written notice bear the cost of a special audit of the Company if required by the rules and regulations of the Commission as a result of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registrationpostponement.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the (c) The Company (the “Initiating Substantial Holder”), shall be entitled to have all or include in any number of such Initiating Substantial Holder’s Registrable Securities included registration statement referred to in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention 3, shares of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed Common Stock to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersExisting Shareholders.
Appears in 1 contract
Sources: Registration Rights Agreement (Apollo International of Delaware Inc)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall If, at any time make time, WDC is unable to sell during a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 three-month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 144 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company1933 Act, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein it is permitted to sell pursuant to Section 10(b) hereof, WDC shall have been the right to request, by written notice, on one occasion, that Komag file a Registration Statement on Form S-3 pursuant to Rule 415 covering all Registrable Securities for the purpose of registering such securities under the 1933 Act ("Demand Registration"). Any such written notice shall (i) specify the amount of Registrable Securities intended to be sold or disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, by WDC and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with state the intended method or methods of disposition (including by means of an underwritten offering) of such Registrable Securities. Promptly after receiving the written notice of the request for Demand Registration, Komag shall use commercially reasonable efforts to cause all Registrable Securities specified in the written request to be registered on the Demand Registration Statement under the 1933 Act, subject to and in accordance with the terms, conditions, procedures and limitations contained in this Agreement.
(b) Notwithstanding the foregoing, Komag shall not be obligated to effect the filing of a registration pursuant to Section 2.1(i4(a): (i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time prior to September 8, 2000, (ii) after Komag has effected one registration pursuant to Section 4(a), or (iii) if, at the date hereof time of any request to use Form S-3register Registrable Securities pursuant to Section 4(a), Komag is preparing, or within ten (10) days thereafter engages an underwriter, and commences in order good faith to fulfill its obligations under Section 2(i) the Company shall file prepare, a Registration Statement on Form S-1 or for a public offering (other appropriate form than a registration relating solely to employee benefit plans) which is in fact filed and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared becomes effective no later than within ninety (90) days after the date WDC has provided the written request, or is engaged in any material acquisition or divestiture or other business transaction with a third party which the Board of filing Directors of Komag reasonably determines in good faith would be adversely affected by the Demand Registration to the material detriment of Komag, then Komag may at its option direct that such Demand Registration be delayed for a period not in excess of ninety (90) days from the date of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2request.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Demand Registration. (a) Subject to subparagraphs (i), (ii) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding and (the “Demanding Holders”iii) shall below and at any time beginning 180 days after the date of execution of this Agreement, holders of at least 30% of the total number of outstanding Registrable Shares (assuming conversion of all shares of Preferred Stock into Common Stock) may make a written request to the Company, the Company shall cause there to be filed with the Commission effect a registration statement meeting the requirements of under the Securities Act of all or a portion of the Registrable Shares held by such requesting holders in accordance with this Section 2 (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no . The request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities Shares proposed to be registered, included in such Demand Registration and the intended methods method of disposition thereof and that the request is for a Demand Registration distribution, which may be pursuant to this Section 2.1(i).
(ii) a shelf registration. The Company shall be entitled promptly use its best efforts to postpone for up to one hundred twenty (120) days effect a Demand Registration, as expeditiously as possible, on an appropriate form under the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence Securities Act of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving Shares which the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationhas been so requested to register; provided, however, that the Company shall not have postponed be obligated to effect any Demand Registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to file more than five registration statements in total pursuant to this Section 2.1(ii2, subject to paragraph (c) below;
(ii) the Company shall not be obligated to file any registration statement during any period in which (A) any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Registrable Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days or (B) the Company has determined in good faith that the filing of any other Demand Registration a registration statement otherwise required would require the disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, such filing to be prepared and filed delayed until the date which is 90 days after such request for registration pursuant to this Section 2.1 during 2(a), provided, that the 24 month period ended on Company may only so delay the date filing or effectiveness of the relevant request a registration statement pursuant to this Section 2.1(i).2(a)(ii)(B) on one occasion during any twelve-month period; and
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request with respect to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Demand Registration pursuant to this Section 2.22, the Company may include in such Demand Registration securities that are not Registrable Shares if, in the view of the managing underwriter, the inclusion thereof will not adversely affect such offering. If such Demand Registration is an underwritten offering and the managing underwriter advises the Company in writing that the inclusion of all Registrable Shares and the Other Shares proposed to be included in such Demand Registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares and Other Shares proposed to be included in such Demand Registration shall be included in the following order:
(A) First, up to the number of Registrable Shares requested to be included which in the opinion of the managing underwriter can be sold without adversely affecting the marketability of the offering, pro rata among the respective holders thereof on the basis of the amount of Registrable Shares requested to be included in the offering by each such holder;
(B) Second, any Other Shares the Company proposes to be included in the Demand Registration; and
(C) Third, any Other Shares requested to be included in the Demand Registration by any holder having contractual registration rights.
2.3(b) The holders of Registrable Shares requesting a Demand Registration may, in the notice delivered pursuant to paragraph 2(a) above, elect that such Demand Registration be an underwritten offering. Following receipt of Upon such election, such holders shall select one or more nationally recognized investment banks to act as the managing underwriter and shall select any additional investment banks to be used in connection with such offering, provided that such managing underwriter and investment banks must be reasonably satisfactory to the Company. The Company shall, together with all holders proposing to sell Registrable Shares in such offering, enter into a customary underwriting agreement with such underwriters.
(c) A request for a Demand Registration or a Shelf Registration, may be withdrawn by written notice to the Company shallby the holders a majority of the Registrable Shares to be included in such registration with the following consequences:
(i) File If such request for a Demand Registration is withdrawn prior to the filing date of the registration statement with the Commission statement, such withdrawn registration shall not count as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.Demand Registration for purposes of paragraph (a) above;
(ii) Use If such request for a Demand Registration is withdrawn after the Company’s best efforts to keep filing date of the relevant registration statement Continuously Effective but prior to its effective date, such withdrawn registration shall not count as a Demand Registration for purposes of paragraph (a) above if the participating holders (x) if have reimbursed the Company for all out-of-pocket expenses incurred by the Company in connection with such withdrawn registration or (y)
(1) reasonably believed that the registration statement contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading, (2) notified the Company of such fact and requested that the Company correct such alleged misstatement or omission and (3) the Company has refused to correct such alleged misstatement or omission; and
(iii) A registration statement that becomes effective shall count as a Demand Registration, Registration for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of paragraph (a) above unless (x) the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any becomes subject to a stop order, injunction or other order or requirement of the Commission or any other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iiiy) if the conditions to closing specified in the purchase agreement or underwriting agreement, if any, agreement entered into in connection with such registration are not satisfied or waivedsatisfied, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order some act or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed omission by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2holders.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Amc Entertainment Inc)
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more all of the Registrable Securities then outstanding are not included in a Shelf Registration that is Continuously Effective pursuant to Section 3.1 hereof within one hundred twenty (120) days from the “Demanding Holders”) shall date hereof, or if at any time thereafter all of the Holders' Registrable Securities are not covered by a Continuously Effective registration statement, the Holders of at least 25% of the Registrable Securities may make a written request to the CompanyCompany (the "Demanding Holders"), that the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.74.6) all or such number of such ----------- Demanding Holder’s Registered Shares's Registrable Securities, as the Demanding Holder shall report request in writing; provided, however, that no request may be made pursuant to this -------- -------
Section 2.1 4.1 if within six (6) months prior to the date of such request a Demand Registration Statement ----------- registration statement pursuant to this Section 2.1 4.1 shall have been declared ----------- effective by the Commission. Any request made pursuant to this Section 2.1 4.1 shall ----------- be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i4.1(i). The Holders shall be entitled to no more than four -------------- Demand Registrations.
(ii) The Company shall be entitled to postpone for up to one hundred twenty ninety (12090) days the filing of any Demand Registration registration statement otherwise required to be prepared and filed pursuant to this Section 2.14.1, if the Board determines, in ----------- its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or of Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, -------- ------- that the Company shall not have postponed pursuant to this Section 2.1(ii4.1(ii) the --------------- filing of any other Demand Registration registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 4.1 during the 24 twelve (12) month period ended on ----------- the date of the relevant request pursuant to Section 2.1(i4.1(i).. --------------
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i4.1(i) to effect the registration of any Registrable Shares-------------- Securities, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s 's Registrable SharesSecurities, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request (iv) Subject to Section 4.6, in connection with an ----------- underwritten offering, the Company (the “Initiating Substantial Holder”)and, shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary approval of the Company, and other holders of Common Stock (other than Holders) shall specify be given the number opportunity to include shares of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2Common Stock in such offering ("Other Included Shares").
2.34.2. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best all reasonable efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best all reasonable efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if or such earlier time as the Company would not have any obligation to include the Registrable Securities that have not been disposed of in the manner described in the Registration Statement in a Shelf Registration, for three years. registration pursuant to Section 4 or Section 3 pursuant to the definition of "Registrable --------- --------- Securities." Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 4 is suspended or, in the case of a --------- Demand Registration, postponed as permitted by Section 2.1(ii4.1(ii), the foregoing -------------- period shall be extended by the aggregate number of days of such suspension or postponement.
2.44.3. The Company shall be obligated to effect no more than three a total of four Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf RegistrationRegistrations. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration Demand Registration pursuant to this Section 2 4 shall be deemed to have been satisfied (i) if a Demand Registration, --------- upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) Statement or the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days. Any Demand Registration Statement which, and (ii) if a Shelf Registrationafter filing with the Commission is withdrawn by the Holders, upon shall be deemed to have been effective in determining the effective date number of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, Demand Registrations the Company is thereafter entered or initiatedobligated to effect hereunder.
2.54.4. A registration pursuant to this Section 2 4 shall be on Form S-3 --------- such appropriate registration form of the Commission as shall (i) be selected by the Company and be reasonably acceptable to the Demanding Holders and (ii) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment4.1(i). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.--------------
2.64.5. If any registration pursuant to Section 2 4 involves an --------- underwritten offering (whether on a “"firm”, “," "best efforts” " or “"all reasonable efforts” " basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, Demanding Holders shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so -------- ------- selected shall be reasonably acceptable to the Company.
2.74.6. Whenever the Company shall effect a registration pursuant to this Section 2 4 in connection with an underwritten offering by one or --------- more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ ' Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or othersby other Persons) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Demanding Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and shall be allocated: first on a pro rata basis based on the number of shares, with ----- registration rights, of Common Stock they own or have a right to purchase upon exercise of Common Stock warrants or options or conversions of Series A Preferred Stock among all Selling HoldersHolders and the holders of registration rights pursuant to those certain registration rights agreements entered into by the Company with IBM Credit Corporation, the holders of its Series A Preferred Stock and the Common Stock warrants issued in conjunction therewith, the Placement Agents employed by the Company in connection with the sale of such Series A Preferred Stock and Common Stock Warrants and Carlton ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ and holders of Common Stock issued in connection with an acquisition completed prior to the date hereof and who have requested inclusion in such registration and second by the Company and third by other holders with respect to the Other ------ ----- Included Shares, provided, however, that, so that such allocation shall not operate to reduce the aggregate number of Registerable Securities and other securities to be included in such registration, if the Selling Holder or other selling securityholder does not request inclusion of the maximum number of Registrable Securities and other securities allocated to him pursuant to the above-described procedure, the remaining portion of his allocation shall be reallocated among those other selling securityholders whose allocations did not satisfy their requests pro rata, and this procedure shall be repeated until all of the other securities which may be included in the registration on behalf of the Holder and other selling securityholders have been so allocated.
Appears in 1 contract
Sources: Registration and Put Rights Agreement (Western Micro Technology Inc /De)
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more 3.1. At any time following 120 days after the closing of the Company's IPO, the Initiating Holders may request in writing that all or part of their Investor Registrable Shares shall be registered under the Securities then outstanding (the “Demanding Holders”) shall at Act. Within 20 days after receipt of any time make a written request to the Companysuch request, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the other Holders, and shall include in such registration all Registrable Shares held by all such Holders who wish to participate in such demand registration and provide the Company (with written requests for inclusion therein within 20 days after the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary receipt of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3's notice. Following receipt of a request for a Demand Registration or a Shelf RegistrationThereafter, the Company shall:
(i) File shall effect the registration statement of all Registrable Shares as to which it has received requests for registration (a "DEMAND") and in connection with the Commission as promptly as practicable, and shall use first Demand after the Company’s 's IPO (the "FIRST DEMAND"), use its best efforts to have the registration declared such First Demand effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time 61st day after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in Initiating Holders make such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment)First Demand. Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts have the right, exercisable by the 31st day after such First Demand, to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated nullify such Demand in order to file a Registration State registration statement for the registration of its equity securities for its own account. Subject to the provisions of this Section 3.1, no Demand shall be binding on any form other than Form S-3 to fulfill ist obligations under Section 2.2.the Company if the Company has filed any
2.63.2. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the The Initiating Substantial Holder, as the case may be, Holders shall have the right to select three (3) Demands. Subsequent to the underwriter First Demand, no Demand shall be effective unless Initiating Holders holding at least 10% of the unregistered Series D Investor Registrable Shares (other than any such Holders who are holding Preferred A, Preferred B or underwriters and manager Preferred C Shares or managers Investor Registrable Shares issued in respect thereof) join in such Demand.
3.3. Any registration proceeding begun pursuant to administer such underwritten offering Sections 3.1 or 3.2 that is subsequently withdrawn at the placement agent or agents for such agented offeringrequest of the Initiating Holders (with respect to their Demand) shall count toward the quota of registration statements which the Investor Holders have the right to cause to effect pursuant to Section 3.2; providedprovided further, however, that each Person such withdrawn registration shall not be so selected shall be reasonably acceptable counted if such withdrawal is based upon material adverse information relating to the Company.
2.7Company or its condition, business, prospects or general securities market conditions which is different from that generally known to the Initiating Holders at the time of their request. Whenever In addition, in the event that the Company shall effect utilizes its right under Section 3.1 to file a registration statement for its own account by the 31st day subsequent to the making of the First Demand, such Demand shall not count toward the quota of registration statements which the Investor Holders have the right to cause to effect pursuant to this Section 2 in connection 3.2. Only the Initiating Holders who make a Demand under Sections 3.1 and 3.2 shall have the right to withdraw registration proceedings under Sections 3.1 and 3.2 (with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed respect to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holderstheir Demand).
Appears in 1 contract
Demand Registration. (i) If Subject to Section 2.4, on or after the date of this Agreement, if one or more Holders that own an aggregate of 51% or more in aggregate principal amount of the Registrable Securities then outstanding (the “"Demanding Holders”") shall at any time make a written request to the Company, the Company (with the cooperation of the Demanding Holder) shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares's Registrable Securities, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six four (64) months prior to the date of such request (i) a Demand Registration Statement pursuant to this Section 2.1 or a Shelf Registration Statement under Section 2.2 shall have been declared effective by the Commission; and provided, further, that no request for a registration shall be made unless the minimum anticipated offering price of the Registrable Securities requested to be included in the Demand Registration, before underwriting discounts and commissions, is $25,000,000, or more. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the CompanyCompany Notice Parties, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The After November 30, 2002, Company shall be entitled to postpone for up to one hundred twenty (120) 120 days the filing of any Demand Registration statement Statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, Company determines in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and or the Transfer or of Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition acquisition, reorganization or reorganization other matter involving the Company or any of its wholly owned subsidiaries Affiliates and the Company promptly gives the Demanding Holders notice of such determination; provided. Notwithstanding anything in this Section 2.1(ii) to the contrary, however, that the Company there shall not have postponed be no more than two delay periods pursuant to this Section 2.1(ii) the filing of and/or Section 2.2(iii) during any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 consecutive 12-month period during the 24 month period ended on the date of the relevant time in which Holders may request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (United States Cellular Corp)
Demand Registration. (i) If At any time on or after the date the Warrants shall be exercisable by Holder in accordance with their terms and upon satisfaction of any requirements in the Warrants or in the Services Agreement with respect to the disposition of the Warrants or of such Shares, if one or more Holders that own an aggregate market value of 51% $2,000,000 or more at the time of the request of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.72.6) all or such number of such Demanding Holder’s Registered SharesRegistrable Securities, as the Demanding Holder shall report designate pursuant to Section 2.1(i) or (iii) in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) 90 days the filing of of, or any Demand Registration Transfer under, any registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with Company furnishes to the concurrence Holders a certificate signed by the chief executive officer of the managing underwriterCompany stating that in the good-faith judgment of the Board of Directors of the Company, if any), that it would be materially detrimental to the Company and its stockholders for such registration and the to be effected or Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of to be made at such determinationtime; provided, however, that the Company such right shall not have postponed pursuant to this Section 2.1(ii) the filing of be invoked more than once in any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 twelve month period ended on the date of the relevant request pursuant to Section 2.1(i)period.
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable SharesSecurities, the Company shall promptly give written notice of such proposed registration to all other Holders. Any such Holder may, within twenty (20) 20 days after receipt of such notice, request in writing that all of such Holder’s Registrable SharesSecurities, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission in accordance with Section 5 hereof as promptly as practicable, and shall use the Company’s its reasonable best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s reasonable best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, continuously effective for up to two hundred seventy (270) 90 days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponementstatement.
2.42.3. The Company shall be obligated to effect no more than three one Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective continuously effective for a period of two hundred seventy (270) 90 days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.52.4. A registration pursuant to this Section 2 shall be on Form S-3 such appropriate registration form of the Commission as shall (i) be selected by the Company and be reasonably acceptable to the Selling Holders, and (ii) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.62.5. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, Company shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent Agent or agents Agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the CompanySelling Holders.
2.72.6. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities (determined by the relative market value as of the date on which a timely demand is last received from Holder) proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders: first for the account of the Holder, and second by all other Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Metro One Telecommunications Inc)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at At any time make a written request to the Companyafter February 9, 2000, provided the Company shall cause there not prior to be filed with the Commission such date have caused a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the CommissionSEC pursuant to Section 2.02 covering all of the ▇▇▇▇▇ Shares, the Shareholder may require the Company (pursuant to a written notice to the Company) to effect the registration under the Securities Act of ▇▇▇▇▇ Shares of the Company other than pursuant to a registration statement on Form S-1 (a "DEMAND REGISTRATION"). Any Such request made (a "DEMAND REQUEST") by the Shareholder shall (i) specify the class and number of ▇▇▇▇▇ Shares which the Shareholder intends to sell or dispose of, and (ii) state the intended method or methods by which the Shareholder intends to sell or dispose of such ▇▇▇▇▇ Shares. In connection with any underwritten public offering, the underwriter thereof shall be selected by the Shareholder, subject to the consent of the Company, which shall not be unreasonably withheld, Upon receipt of a Demand Request, the Company shall (as requested) cause to be filed, within thirty (30) calendar days of the date of delivery to the Company of the request, a registration statement covering such ▇▇▇▇▇ Shares which the Company has been so requested to register, providing for the registration under the Securities Act of such ▇▇▇▇▇ Shares to the extent necessary to permit the disposition of such ▇▇▇▇▇ Shares to be registered in accordance with the intended method of distribution specified in such request. The Shareholder shall have the right to exercise only one such Demand Registration; provided, however, if the Shareholder shall not be entitled to include all of its ▇▇▇▇▇ Shares in a Demand Registration, the Shareholder may be entitled to make an additional Demand Request, notwithstanding the registration of certain of the ▇▇▇▇▇ Shares pursuant to the then pending Demand Registration.
(b) Notwithstanding the foregoing, the Company shall not be required to effect any registration statement pursuant to this Section 2.1 shall be addressed to 2.01 (i) within 90 days after the attention effective date of the Secretary any other registration statement of the Company, and shall specify 's securities or (ii) during the number pendency of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a any Demand Registration pursuant to this Section 2.1(i)Blackout Period.
(iic) The If any of the Company's investment banker or any underwriter determines in good faith that the registration statement and distribution of the ▇▇▇▇▇ Shares (or the use of the registration statement or related prospectus) would materially interfere with any pending financing, merger, acquisition or corporate reorganization involving the Company (or would require premature disclosure thereof), and promptly gives the Shareholder written notice of such determination following its Demand Request, the Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration the registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving by the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received 2.01 for a demand pursuant reasonable period of time, not to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) exceed 90 days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”"Demand Blackout Period"). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with promptly notify the right to request one Shelf Registration. For purposes Shareholder of the preceding sentenceexpiration or earlier termination of any Demand Blackout Period, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after and upon such registration statement has become effective, such registration expiration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If termination the Company shall have complied with its obligations under this Agreement, a right to demand a immediately file the registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request statement pursuant to Section 2.1(i) or Section 2.2, respectively2.01. The Company agrees to file all reports required to rights under this Section 2.01 shall be filed by separate and distinct from any other rights the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case Shareholder may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations have under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.22.02.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Demand Registration. (ia) If At any time on or after the date of this Agreement, if one or more Holders that own an aggregate of 51% or more a majority of the Registrable Securities then outstanding (the “Demanding Holders”) Then Outstanding shall at any time make a written request to the CompanyCompany (the "Demanding Holders"), the Company shall cause there to be promptly filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.72.6) all or such number of Registrable Securities as such Demanding Holder’s Registered Shares, as the Demanding Holder shall report request in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six nine (69) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commissionsatisfied (as provided in Section 2.3). Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company with a copy to the President of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i2.1(a).
(iib) The Company shall be entitled to postpone for up to one hundred twenty (120) 120 days from receipt of the written request for a Demand Registration the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any)judgment, that such registration and the Transfer or of Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, (A) any financing, acquisition or reorganization involving the Company or any of its material wholly owned subsidiaries or (B) any other material contract under active negotiation by the Company or any of its subsidiaries, disclosure of which is prohibited by applicable regulation, and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii2.1 (b) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 6 month period ended on the date of the relevant request pursuant to Section 2.1(i2.1(a).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares; and provided further, that, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or file any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made Demand Registration postponed pursuant to this Section 2.2 shall be addressed 2.1 (b) as soon as reasonably practicable following the cessation of the conditions specified in clauses (A) or (B) of this Section 2.l(b) if prior to the attention expiration of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2120-day period.
2.32.2. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(ia) File the registration statement Demand Registration with the Commission as promptly as practicable, and shall use the Company’s 's reasonable best efforts to have the registration Demand Registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(iib) Use the Company’s 's reasonable best efforts to keep the relevant registration statement Demand Registration Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) 120 days or until such earlier date as of which all the Registrable Securities under included in the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Demand Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration Demand Registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), 2.1(b) the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4(c) Whenever the Company shall have received a demand pursuant to Section 2.1(a) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any Holder may, within thirty (30) days after receipt of such notice, request in writing that all of such Holder's Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.3. The Company shall not be obligated to effect no more than three ten (10) Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf RegistrationRegistrations. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statementa registration statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) 120 days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively2.4. The Company agrees may, at its sole option, elect to file all reports required to be filed by the Company with the Commission in satisfy a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, request for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Demand Registration Statement on Form S-1 S-2 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 promulgated under the Securities Act and cause such Registration Statement (or any successor forms thereto), if such amendment) forms are then available to the Company; provided, however, that the Majority Selling Holders or the Underwriters' Representative of the proposed offering shall have the right to require that the Company disclose in the registration statement and form of prospectus included therein the type of information that would be required in a Form S-1 registration statement if the Underwriters' Representative reasonably deems such disclosure to be declared effective no later than ninety (90) days after advisable in order to successfully market the date of filing of securities intended to be sold in such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2offering.
2.62.5. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “"firm”, “," "best efforts” " or “"all reasonable efforts” " basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, Holders shall have the right to select the managing underwriter or underwriters and lead manager or managers to administer such underwritten offering or the lead placement agent or agents for such agented offering; : provided, however, that each Person so selected shall be reasonably acceptable to the Company; and provided, further, that the Company shall have the right to select a co-managing underwriter or co-manager to administer an underwritten offering and a co-placement agent if an agented offering, provided that each Person so selected by the Company shall be reasonably acceptable to the Majority Selling Holders.
2.7. (a) With respect to any registration pursuant to this Section 2, the Company may include in such registration any Primary Securities or Other Securities, including Other Securities held by the Centre Holders; provided, however, that if the Underwriters' Representative or Agent advises the Company in writing (with a copy to each Selling Holder) that the inclusion of all Registrable Securities of the Selling Holders, the Primary Securities and the Other Securities proposed to be included would materially interfere with the successful marketing (including pricing) of the Registrable Securities proposed to be included in such registration, then the number of Registrable Securities, Primary Securities and Other Securities proposed to be included in such registration shall be included in the following order:
(i) (A) first, the Registrable Securities requested to be included in such registration by the Selling Holders pursuant to this Section 2; (B) second, the Centre Common Stock requested to be included in such registration pursuant to the Centre Registration Rights Agreement; (C) third, all Other Securities being registered, pro rata based on the proportionate share of the aggregate of such Other Securities; and (D) fourth, the Primary Securities.
(b) Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) , if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ ' Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, them shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Firearms Training Systems Inc)
Demand Registration. (ia) If one Any Stockholder or more Holders group of Stockholders that own an Beneficially Owns, in the aggregate Registrable Securities representing at least ten percent (10%) of 51% the outstanding shares of Common Stock held by all Stockholders shall have the right, by written notice given to the Company (a “Demand Notice”), to request the Company to register under and in accordance with the provisions of the Securities Act all or more any portion of the Registrable Securities then outstanding designated by such Stockholder(s); provided, however, that:
(i) the Stockholder shall not be permitted to give a Demand Notice, and the Company shall not be required to take any of the actions to register Registrable Securities pursuant to this Section 7.2 until six (6) months following the completion of an initial public offering by the Company of shares of the Common Stock (an “Demanding HoldersIPO”);
(ii) prior to the time the Company becomes eligible to use Form S-3 (or any successor form) for the registration of Registrable Securities for resale, such Stockholder(s), in the aggregate, shall only be entitled to three (3) Demand Registrations pursuant to the provisions of this Section 7.2 (provided, that each Stockholder entitled to deliver a Demand Notice pursuant to Section 2.1(a) shall be entitled to initiate at least one (1) Demand Registration), unless any Demand Registration does not become effective or is not maintained in effect for the respective periods set forth in Section 7.2(e), in which case the relevant Stockholder(s) will be entitled to an additional Demand Registration pursuant hereto;
(iii) following the time make that the Company is eligible to use Form S-3 for the registration of Registrable Securities for resale, in no event shall the Company be required to file more than three (3) Demand Registrations during any twelve (12) month period; and
(iv) the Registrable Securities requested to be registered constitute at least ten percent (10%) of the shares of Common Stock issued and outstanding on the date of this Agreement.
(b) Upon receipt of a written request to the CompanyDemand Notice, the Company shall cause there promptly (and in any event within ten (10) Business Days from the date of receipt of such Demand Notice), notify all other Stockholders of the receipt of such Demand Notice and allow them the opportunity to include Registrable Securities held by them in the proposed registration by submitting their own Demand Notice. In connection with any Demand Registration that involves an underwritten offering in which more than one Stockholder participates, in the event that the managing underwriter or underwriters for such offering advise such Stockholders in writing that the total number of Registrable Securities to be filed included in such offering exceeds the amount that can be sold in (or during the time of) such offering without delaying or jeopardizing the success of such offering (including the price per share of the Registrable Securities to be sold), then the Registrable Securities to be offered shall be distributed amongst the participating Stockholders pro rata according to each Stockholder’s overall percentage of ownership in the Company at the time of delivery of the Demand Notice. In the event of such a pro-rata distribution, to the extent that any Stockholder (or Stockholders) has not submitted a Demand Notice, or withdraws from the underwriting, then those shares of Common Stock that would have been allocated pro-rata to the non-participating Stockholder if they had participated shall be allocated amongst the participating Stockholders, pro rata according to each participating Stockholder’s overall percentage of ownership in the Company.
(c) The Company, within forty-five (45) days of the date on which the Company receives a Demand Notice given by Stockholders in accordance with Section 7.2(a), shall file with the Commission SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a Registration Statement on the appropriate form for the registration statement meeting and sale, in accordance with the requirements intended method or methods of distribution, of the total number of Registrable Securities Act specified by the Stockholders in such Demand Notice (a “Demand Registration”). Any Demand Registration may, and at the request of the Stockholders submitting the Demand Notice Beneficially Owning a majority of the Registrable Securities to be registered pursuant to such Demand Registration, be a Shelf Registration pursuant to Rule 415 under the Securities Act.
(d) The Company shall use commercially reasonable efforts to keep each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made Registration Statement filed pursuant to this Section 2.1 if within six (6) months prior to 7.2 continuously effective and usable for the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention resale of the Secretary of the Company, and shall specify the number of Registrable Securities to be registeredcovered thereby (i) in the case of a Registration that is not a Shelf Registration, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to period of one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on from the date of on which the relevant request pursuant to Section 2.1(i).
SEC declares such Registration Statement effective and (iiiii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date case of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, for a period of three (3) years from the Company shall:
(i) File date on which the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicableSEC declares such Registration Statement effective, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective either case (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as all of which all the Registrable Securities under the Demand covered by such Registration statement shall Statement have been disposed of in the manner described in the sold pursuant to such Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration as such period may be extended pursuant to this Section 2 7.2. The time period for which the Company is suspended or, in required to maintain the case effectiveness of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period any Registration Statement shall be extended by the aggregate number of days of all Delay Periods and all Interruption Periods occurring with respect to such suspension or postponementRegistration and such period and any extension thereof is hereinafter referred to as the “Effectiveness Period”.
2.4. (e) The Company shall be obligated entitled to effect no more than three Demand Registrations postpone the filing of any Registration Statement otherwise required to be prepared and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with filed by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order7.2, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for suspend the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a effective Registration Statement on Form S-1 or other appropriate form and not later than five under this Section 7.2 (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the during which suspension each Stockholder Beneficially Owning Registrable Securities covered by the Registration Statement on Form S-1 shall discontinue disposition of any Registrable Securities covered by the Registration Statement), for a reasonable period of time (a “Delay Period”), if the Board determines in good faith and in the Board’s reasonable judgment that the registration and distribution of the Registrable Securities covered or other form filed pursuant to Section 2(i) (and include in be covered by such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) would materially interfere with any pending material financing, acquisition or convert the Registration Statement on Form S-1 corporate reorganization or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under material corporate development involving the Securities Act Company or any of its Subsidiaries or would require premature disclosure thereof and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after promptly gives the date of filing Stockholders written notice of such Registration Statement (or amendment). Notwithstanding determination, containing a general statement of the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents reasons for such agented offeringpostponement and an approximation of the period of the anticipated delay; provided, however, that each Person so selected (i) the aggregate number of days included in all Delay Periods during any consecutive twelve (12) months shall be reasonably acceptable to not exceed the Company.
2.7aggregate of (x) forty-five (45) days minus (y) the number of days occurring during all Interruption Periods during such consecutive twelve (12) months and (ii) a period of at least forty-five (45) days shall elapse between the termination of any Delay Period or Interruption Period and the commencement of the immediately succeeding Delay Period. Whenever If the Company shall effect so postpone the filing of a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinionRegistration Statement, the inclusion of more than one class Stockholders of Registrable Securities would adversely affect such offering, to be registered shall have the Demanding Holders holding at least right to withdraw the request for registration by giving written notice from the Stockholders of a majority of the Registrable Securities proposed that were to be sold therein by themregistered to the Company within forty-five (45) days after receipt of the notice of postponement or, if earlier, the termination of such Delay Period (and, in the event of such withdrawal, such request shall decide not be counted for purposes of determining the number of requests for registration to which class the Stockholders of Registrable Securities are entitled pursuant to this Section 7.2). The Company shall not be entitled to initiate or continue a Delay Period unless it shall (A) concurrently prohibit sales by all other security holders under registration statements covering securities held by such other security holders and (B) in accordance with the Company’s policies from time to time in effect, forbid purchases and sales in the open market by Directors and executive officers of the Company.
(f) The Company shall not include any securities (whether for its own account or otherwise) that are not Registrable Securities in any Registration Statement filed pursuant to this Section 7.2 without the prior written consent of the Stockholders of a majority in number of the Registrable Securities covered by such Registration Statement. Any such securities so included shall be included therein subject to the cut-back provisions of Section 7.2(b).
(g) Stockholders holding a majority in such offering and number of the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested Registrable Securities to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable Registration Statement pursuant to this Section 7.2 may, at any time prior to the Majority Selling Holderseffective date of the Registration Statement relating to such Registration, securities shall be included in revoke such offering and the related registration, request by providing a written notice to the extent Company revoking such request. Any such Demand Request so withdrawn shall not be counted for purposes of determining the number of requests for registration to which the Stockholders of Registrable Securities are entitled pursuant to this Section 7.2 if the Stockholders of Registrable Securities who revoked such request reimburse the Company for all its out-of-pocket expenses incurred in the preparation, filing and processing of the amount which can Registration Statement; provided, however, that, if such revocation was based on (i) the Company’s failure to comply in any material respect with its obligations hereunder or (ii) the institution by the Company of a Delay Period or the occurrence of any Interruption Period, such reimbursement shall not be sold within such price range, and on a pro rata basis among all Selling Holdersrequired.
Appears in 1 contract
Demand Registration. Subject to the terms of this Section 3, on any date after August 31, 2000, if the Corporation shall be requested in writing by a Shareholder to effect a registration under the Securities Act of Registrable Shares, the Corporation shall promptly give written notice of the proposed registration to the other Shareholders and shall promptly use its reasonable best efforts to effect such registration under the Securities Act of such Registrable Shares which (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding Corporation has been so requested by the initiating holders thereof to register and (ii) the “Demanding Holders”other Shareholders have, within ten (10) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number days of such Demanding Holder’s Registered Sharesnotice, as the Demanding Holder shall report requested in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities writing to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company Corporation shall not have postponed pursuant be obligated to effect any registration under this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission 3 except in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant following provisions:
(a) the Corporation shall not be obligated to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant use its reasonable best efforts to this Section 2.2 shall be addressed file and cause to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shallbecome effective:
(i) File more than two (2) registration statements for the Shareholders with respect to Registrable Shares initiated pursuant to this Section 3; provided, however, that any registration proceeding begun pursuant to this Section 3 that is subsequently withdrawn at the request of the holders of the Registrable Shares shall not count toward the three (3) registration statements which such Shareholders have the right to cause the Corporation to effect pursuant to this Section 3; provided, however, that the holders requesting the withdrawal of the registration shall reimburse the Corporation for all Registration Expenses incurred by the Corporation directly attributable to them unless the withdrawal is based upon material adverse information concerning the Corporation of which such initiating holders were not aware at the time of such request; and provided further, however, that if such holders are required to reimburse the Corporation for such Registration Expenses, such expenses shall be borne by such holders requesting such registration in proportion to the number of Registrable Shares for which registration was requested; or
(ii) any registration statement with the Commission as promptly as practicable, during any period in which a registration statement pertaining to a QPO has been filed and shall use the Company’s best efforts to have the registration not withdrawn or has been declared effective within the prior one-hundred eighty (180) days; or
(iii) any registration statement during any period in which the Corporation would be required under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, special audit of its financial statements for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of inclusion in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or (unless the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all participating holders of the Registrable Securities included therein shall have been disposed Shares agree in writing to bear the cost of pursuant to the Registration Statement, and such special audit);
(yb) the date as Corporation may delay the filing or effectiveness of which such Demand Registration shall have been Continuously Effective any registration statement for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant up to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 a request for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 3, but no more than once in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: any twelve (12) month period, if:
(i) if (A) at the time of such Selling Holders have requested request the inclusion therein Corporation is engaged, or has formal plans to engage, within sixty (60) days of more than one class the time of Registrable Securitiessuch request, in an underwritten public offering of Shares (including an offering contemplated by Section 2 hereof), and (B) an investment banking firm of recognized national or regional standing has advised the Underwriters’ Representative Corporation that effecting the requested registration could impair the success of such underwritten public offering (which period of delay shall also be subject to Section 3(a)(iii) hereof); or
(ii) the Corporation determines in good faith that (A) it is in possession of material, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or Agent advises each other material transaction by or of the Corporation or concerning pending or threatened litigation and (B) disclosure of such Selling Holder in writing information would jeopardize any such transaction or litigation or otherwise materially harm the Corporation; or
(iii) the Corporation shall furnish to the holders of the Registrable Shares who have demanded registration a certificate signed by the President of the Corporation stating that, in the good faith judgment of the Board of Directors of the Corporation, it would not be in the best interests of the Corporation and its opinionshareholders generally for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement; and
(c) if the Shareholder intends to distribute Registrable Shares covered by the request by means of an underwriting, it shall so advise the Corporation as part of the request made pursuant to this Section 3. In such event, the right of the Shareholder to include such Registrable Shares in such registration shall be conditioned upon the Shareholder's participation in such underwriting and the inclusion of more than one class such Registrable Shares in the underwriting. The Shareholder shall (together with the Corporation as provided herein) enter into an underwriting agreement in customary form with the managing underwriter or underwriters of Registrable Securities would adversely affect such the offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed such managing underwriter or underwriters to be sold therein selected by themthe Shareholder making the demand along with the holders of other Registrable Shares which may be included therein, shall decide subject to the Corporation's approval, which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall not be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersunreasonably withheld.
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